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Author: Tim Louis

Disability Claims for Self-Employed Professionals

Disability Claims for Self-Employed Professionals

disability claim for self-employed
If you are self-employed and have purchased a disability insurance policy, you have assumed that this policy serves as income replacement if you are unable to run your business for a period of time due to injury or illness.

Private disability insurance is commonly more expensive than group insurance, and generally, the type of coverage it provides is usually more valuable as it often provides benefits in the event you are unable to work in your regular occupation. Unfortunately, just because you have purchased an insurance policy, this does not necessarily mean that the insurer will not make it challenging for you to receive benefits after you have submitted a claim. Insurers often heavily scrutinize claims submitted by independent, self-employed individuals – this is because of the sometimes-large benefit amounts provided by some of these policies.

Know the Terms & Conditions of Your Insurance Policy

To protect your rights, it is integral that you understand the limitations and restrictions outlined in your disability insurance policy. The definitions of certain disabilities can change over time, so it is important to keep up to date and understand these changes that may apply to you.

Know Your Rights about Disability Claims

Once you have purchased your insurance policy, be sure you are aware that although you have coverage, this does not mean you should “rest easy.” In reality, what you are really buying are rights that you can enforce against your insurer if they fail to provide the protection that was sold to you.

Know the Strict Time Limitations

 Many people do not realize that there are strict limitations with regards to filing a lawsuit against insurers, and oftentimes they are missed. If you do miss a limitation period, the insurance company is not required to pay your claim, and therefore your right to sue them is null in void.

Here some common red flags you should be aware of:

  • The claim is taking an unusually long time to resolve
  • Irrelevant information is asked of you
  • A claim has been denied

Hire An Experienced Disability Lawyer

In many cases, filing a lawsuit is not necessary. The first step involves a demand letter, outlining any discrepancies, pointing out the facts, and the law – with the demand that an insurer complies with the terms and conditions of the insurance policy. Insurance companies are often fully aware when they are not in full compliance, and take advantage of policyholders because most people do not know the law in-depth, and are privy to any red flags before signing off on their policy.

Contact Tim Louis & Company

Insurance companies may deny legitimate disability claims, as the majority of individuals will give up instead of fighting for the monetary compensation they deserve. If you are self-employed and an insurance company has denied your long-term disability claim, the team at Tim Louis and Company is on your side and will fight in your corner.

For a free, no-obligation appointment, contact us today by calling 604-732-7678 or email timlouis@timlouislaw.com

 

 

Client Reviews

Surveillance: How You Can Lose Your Long Term Disability Compensation

long term disability surveillanceHow You Can Lose Your Long Term Disability Compensation

Have you applied for Long Term Disability coverage and have the feeling you are being followed while out in public?

If you have submitted an application for disability or are collecting disability compensation, your intuition may be accurate, as there is a good chance an insurer has hired a professional private investigator to conduct surveillance on you, seeking an excuse to save money and attempt to deny your claim.

Insurance companies, like all businesses, are profit-based and lose money if they approve too many claims — so it is in their best interest to prove that you can work without the need to receive compensation for your reported medical condition.

Disability claims are on the rise, and surveillance is an efficient way for insurance companies to gather evidence against you – intending to prove that you are fully capable of fulfilling your job duties and do not require financial support.

Surveillance May Work Against You

Insurance companies may hire a private Investigator, follow you, or set up surveillance in front of your home to observe your daily activities.

Suppose you applied for Long Term Disability due to back pain and then observed via surveillance moving or twisting your body in a way that contradicts what you detailed in your claim. In that case, your credibility may be diminished and lead to a denial of your Long Term Disability insurance benefits claim.

Be Specific On Your Application for Long Term Disability Compensation

Detailing your injuries and being specific about your abilities on your Long Term Disability application is essential. Provide context and be mindful about anything observed via surveillance that may be used against you.

Such that if you are observed merely walking down the street for a more extended period than you mentioned you were able to in your claim, you could be at risk of losing your Long Term Disability insurance coverage.

The same goes for mental health disability claims. For instance, if you claim that you are chronically depressed and unable to leave your home and then observed via surveillance leaving your home on a daily basis, you may be questioned and risk losing your coverage.

Why Surveillance is Not Reliable

Context is everything when it comes to surveillance with regards to Long Term Disability insurance claims. As mentioned in the example above, surveillance is not a reliable measure to understand one’s abilities.

Video evidence does not present the aftermath of the activity, such as the stiffness and pain you may experience immediately after or the next day resulting from specific activities such as reaching, carrying grocery bags, or shovelling snow.

Fighting Against Surveillance Evidence

  • Ensure that you are truthful regarding your disabilities and injuries from the start. Do not stretch the truth because you think it will be more believable.
  • Take extreme caution when posting on any social media channels. Any comments, videos, or images involving events, activities, sports, or vacations, can be used as evidence to affect your disability claim. Be mindful before you post.

Denied Long Term Disability Coverage? Hire an Experienced Lawyer

If you have Long Term Disability coverage, and if you’re suffering from a debilitating illness or injury, then you deserve compensation, and that’s where Tim Louis and Company can help.

When dealing with a Long Term Disability claim, it is essential that you have an experienced, reputable lawyer on your side that specializes in Long Term Disability cases.

Long Term Disability Lawyer Tim Louis has been representing those who suffer from LTD for over 25 years and has successfully sued some of the world’s largest insurance companies on behalf of deserving clients.

Contact Tim Louis and His Team Today

You owe it to yourself to explore your options. Contact Tim Louis and his compassionate and experienced legal team today by calling 604-732-7678 or email timlouis@timlouislaw.com for a no-obligation consultation. We will make sure to evaluate your situation and advise the best possible options for your unique situation.

 

 

Client Reviews

Disability Insurance: Expansion of Special Costs

Disability Insurance: Expansion of Special Costs

disability insurance
 

Introduction

A recent BC Court of Appeal case, Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 [Tanious], gives disability insurance claimants who take their insurers to court greater prospects of obtaining special costs against their insurer, even absent malicious conduct. However, the specific details of the case are very important. This article analyses Tanious with a view to determining the key requirements that will need to be met in future cases to obtain awards of special costs. Leave to appeal Tanious to the Supreme Court of Canada was denied.

Background

Ms. Tanious was diagnosed with multiple sclerosis shortly before beginning a new job. She nonetheless worked at that job for seven years before ceasing work and claiming disability benefits that she was entitled to through her employment. Following her diagnosis, she developed depression and anxiety, and about a year before ceasing work she started using illicit methamphetamines to cope with her deteriorating cognitive capabilities. The insurer, Empire Life, denied that she became disabled during her employment, and further argued that her substance use disentitled her to benefits. At trial, Mr. Justice N. Brown found that she was entitled to disability benefits, and further awarded her $15,000 for aggravated damages for mental distress, loss of peace of mind and of dignity as a person from Empire Life’s refusal to pay benefits.

At the subsequent costs hearing, Brown J. awarded special costs even though the plaintiff conceded that Empire Life did not commit any litigation misconduct. It is this award that was subject to appeal.

The Appeal of Special Costs

The costs scheme in British Columbia is statutory; Rule 14-1 of the Supreme Court Civil Rules sets out the framework for cost awards. It provides that the court may award special costs, but does not set out the circumstances in which they may be awarded. Generally, special costs are only awarded in cases where there has been litigation misconduct. However, there are exceptions, though these are rarely applied. The Tanious case is an example of one such exception.

Overarching Principles

In order to justify a special costs award, the Court of Appeal stated that it is insufficient to simply have a large discrepancy between taxable costs and actual legal costs. There must be some other “unusual feature” in the case, such as “special importance, difficulty or complexity associated with the litigation” (para. 54). The Court cited a handful of examples where special costs had been awarded despite the lack of evidence of misconduct, and explicitly reiterated that in these cases any award of special costs must be made on a principled basis.

Typically, the objectives of costs awards are to provide the winning party with some degree of indemnity for the costs it has incurred during the litigation. However, the Court of Appeal also recognized that costs awards “encourage settlement, deter frivolous actions or defences and sanction unreasonable conduct committed in the course of litigation” (para. 36). Significantly, the Court also indicated that in some instances, “costs may be awarded to enhance access to justice, mitigate severe inequality between litigants and encourage socially desirable conduct” (para. 36).

The Court cited the leading case of Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 465, which provides that in the context of these objectives, “the application of ordinary costs rules usually produces a just result,” but goes on to say that this does not mean “that the personal and financial circumstances of a litigant can never be relevant on a costs application” (para. 60). The Court acknowledged that such circumstances may come in to play in exceptional cases.

The Court went on to discuss other cases where special costs were “justified in the interests of justice” (para. 65). Given the circular nature of this proposal – that special costs awards are justified by justice – it is challenging to elucidate principled reasons for these awards when they are not related to reprehensible conduct. Instead, these cases are fact-specific and must be considered based on their own merits.

The Court included in its analysis two analogous cases out of the Court of Queen’s Bench in Alberta where special costs were awarded: Hennessy v. Horse Racing Alberta, 2007 ABQB 178, where a judicial review was required to defend the appellant’s livelihood and restore his reputation; and Meleshko v. Alberta, 2013 ABQB 468, where the appellant sought judicial review to reinstate long-term disability benefits, and punitive damages were not available. As well, the Court cited FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd., 2016 ABCA 303 for the proposition that special costs could be awarded if success in the litigation would otherwise “amount to a strictly pyrrhic victory” (para. 65).

The final significant case referenced in the appeal was Carter v. Canada (Attorney General), 2015 SCC 5, wherein the test for awarding special costs was refined by the Supreme Court of Canada, stating that “the plaintiffs must show that it would not have been possible to pursue the litigation with private funding” (para. 63). In these instances, it is not just to ask the individual litigants or their counsel to bear the cost of pursuing the claim.

Factors in Tanious in support of special costs

On its face, the trial judge in Tanious made the decision to award special costs on the basis of very few factors, none of which are unusual in a long term disability insurance case: the purpose of the insurance contract is to provide subsistence level income, and when the insurer failed to pay these benefits, the plaintiff had to bring a lawsuit, which cost money. However, the Court of Appeal recognized that when the trial judge’s reasons were read as a whole, it was apparent that he also considered “the nature of the case, including its unique characteristics and related litigation challenges, complexities and costs, together with Ms. Tanious’ personal and financial circumstances and her need for counsel as established by the evidence” (para. 21).

The particular litigation challenges of this case included several factors that added to the effort required by counsel. Ms. Tanious was a difficult client to represent. She could not meet at counsel’s office; counsel had to drive to her. Similarly, she could not review documents to prepare for an examination for discovery as it was too stressful, and she likely would not be able to remember what she had reviewed. Additionally, she attended hospital 33 times over the course of the case, and often called her counsel from hospital to ask for help with various other issues. Ms. Tanious attempted suicide more than once as her disease progressed; if she had died, her claim for benefits would have ended. In preparing for this case, it was difficult for counsel to predict what Ms. Tanious would say at trial.

Though the insurer did not commit misconduct, it could have acted better. The trial judge noted that the insurer made only a cursory response to Ms. Tanious’ initial application for disability benefits, but once in litigation, mounted a vigorous defence. In combination with Ms. Tanious’ poor mental health and declining cognitive abilities, the actions taken by the insurer necessitated that she obtain legal representation in order to pursue the benefits to which she was entitled.

Notably, Ms. Tanious had separate counsel for the costs hearing. This was perhaps because her original counsel had to testify at the hearing via affidavit as to the many special circumstances in Ms. Tanious’ case; s. 5.2-1 of the Code of Professional Conduct precludes counsel from testifying to controversial matters. Though it was not mentioned by the Court, as a practical matter, this ethical rule adds to the challenges of obtaining special costs.

Future Implications

The courts now recognize that in matters of insurance disputes and also in other exceptional situations, many people do not have access to justice unless they are able to retain counsel. Access to justice is recognized as being one of the policy objectives of the courts that thus far is not adequately being met (para. 81). As the consequences of these shortcomings become clearer, it may be possible to seek special costs as a means of ensuring adequate access to justice for members of otherwise underrepresented and vulnerable populations.

It can be difficult to make a financially viable practice taking long term disability cases to trial. While aggravated damages are sometimes awarded, they are typically small awards that are woefully insufficient in comparison to the costs of litigation. Punitive damages require misconduct on the part of the insurer. The risk of a special cost award, absent litigation misconduct, provides the plaintiff with more leverage in negotiations with an insurer, and may allow a plaintiff to recuperate the full benefits to which they are entitled, while also appropriately compensating their counsel.

 

 

Client Reviews

Anxiety and Long Term Disability Claims

Anxiety and Long Term Disability Claims

Anxiety has become a far more common challenge for many in recent years. While the severity of symptoms may vary, many of us have experienced a certain level of anxiety at some point in our lives. For some people, anxiety and panic levels can interfere with daily activities — requiring professional help to cope and help manage the symptoms.

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Below are the 5 most common types of anxiety disorders:

Panic Disorder

People who suffer from panic disorder experience sudden and ongoing intense feelings of terror and emotional control loss. Many symptoms are unique to each individual and can include a racing heartbeat, shortness of breath, dizziness, nausea, chest pain, and numbness, to name a few. According to the National Institute of Mental Health, women are twice as likely to suffer from the condition.

Obsessive-Compulsive Disorder (OCD)

A mental health disorder that affects individuals of all ages, OCD occurs when a person gets caught up in a pattern of sudden compulsions and obsessions. These obsessions (thoughts/images/behaviours are not welcomed by the person and can severely disrupt important daily activities.

Generalized Anxiety Disorder (GAD)

GAD can be characterized by persistent, uncontrollable, ongoing worry about a wide variety of things and events. People who suffer from this disorder excessively worry and anticipate disaster — even if there is no reason to warrant this type of worry. Symptoms can include irritability, having a constant sense of danger, difficulty concentrating, disrupted sleep, fatigue, and increased rapid heartbeat, to name a few.

Post-Traumatic Stress Disorder (PTSD)

PTSD can develop after being exposed to a traumatic event such as a motor vehicle accident, natural disaster, war, assault, a threat with death, or witnesses who have experienced these traumatic events. People with PTSD feel a heightened sense of danger, causing them to feel fearful even when, in reality, they are safe. This is due to the natural fight-or-flight response, which is altered with those who suffer from the disorder.

Social Anxiety Disorder (SAD)

Social Anxiety Disorder, also known as social phobia, is a type of anxiety disorder that causes extreme distress in social settings. Social anxiety is different from shyness, as it is more extreme, persistent, and debilitating. Symptoms can include nausea, rapid heartbeat, trembling, excessive sweating, worrying for days before a social event, excessive worry about embarrassment, missing school, or work because of anxiety. These are just a few symptoms that can take over someone’s life in a negative way.

Why Long-Term Disability Claims are Denied

Long-term disability claims may be denied because of the lack of regular medical care or treatment. Ensuring that you attend all medical appointments and any necessary prescribed medication from a professional specializing in mental health is essential if you want to reduce your chances of having a long-term disability claim denied.

Documentation is Important

Having all of the correct documentation in order and submitted on time is a must for any long-term disability claim submission. Hiring an experienced lawyer specializing in long-term disability claims can ensure that you have all of the correct documents submitted within the specified time frame and any other necessary details that must be sent with your long-term disability application.

Contact Tim Louis & Company Today

An anxiety disorder can have a lasting impact on one’s quality of life. If you or a loved one is experiencing anxiety and has been unable to work because of the condition, contact Tim Louis and his compassionate and experienced legal team today by calling 604-732-7678 or email timlouis@timlouislaw.com. We will make sure to evaluate your situation and advise the best options.

 

 

Client Reviews

Terminated Without Cause?

Wrongful Dismissal

What Are You Entitled To If You Are Terminated Without Cause?

When an employee is terminated without cause, it means they are dismissed for reasons other than workplace misconduct or breach of contract, which would, in that case, be defined as ‘termination with just cause.’

Oftentimes termination without cause occurs during times of economic downturn or when a company is trying to cut costs or chooses to engage in restructuring or realignment. As long as the reason for the termination or lay-off is not discriminatory, such actions are completely legal.

If your employer follows the employment law, and manages the termination correctly, including giving you reasonable notice of termination, meaning notice or pay in lieu of notice, you will have sufficient time to seek other means of employment or at least be compensated financially for your loss of work.

If the employer does not follow the correct legal procedures, a wrongful dismissal case may result, which means it would be time for you to seek the services of an employment lawyer to make a claim for compensation.

How much payment are you due under statute law when terminated without cause?

Payment due is dependent on the duration of your employment at the company. Nevertheless, the following minimum statutory requirements apply:

  • After three consecutive months of employment: one week’s pay must be provided
  • After 12 consecutive months of employment: two weeks’ pay must be provided
  • After 36 consecutive months of employment: three weeks’ pay must be provided
  • For each additional year: a week’s pay (up to a maximum of eight weeks) must be provided

How much payment is your due under common law if you are terminated without cause?

At common law, you are entitled to substantially more than under statute law. Each case is different depending on age and skill set. Generally speaking, you are entitled to between 4-6 weeks of severance pay per year of employment. However, your employer can deduct from this amount any income you earn during this period of time. Even if you earn no money during this time, the court will make a deduction if you failed to make reasonable efforts to look for employment.

When is a payment not required when terminated without cause?

Pay is not required when terminated without cause if reasonable notice is provided. Under common law, reasonable notice is based on length of service, the age of the employee, type of position and the availability of similar employment at the time of termination.

Under these guidelines, the reasonable notice might amount to at least one month per year of service. This may also be specified in your original employment contract. However, even though your contract may require less notice of termination than common law requirements, it cannot be less than the entitlements listed under the BC Employment Standards Act.

As long as these requirements are met, no payment is necessary in termination without cause cases.

Pay or notice is not required in the following circumstances:

  • You resign or retire
  • Your contract ended
  • You have worked at the company for less than three consecutive months
  • You worked on-call (freelanced), were hired to perform specific work in 12 months or less, or were hired temporarily
  • An unexpected event makes it impossible for the planned duties to be carried out
  • You refuse to accept reasonable alternative employment
  • You are terminated for just cause

The reasonable notice and compensation laws governing termination are clear. All employers and even employees should understand them; otherwise, the laws might be breached, and unfair dismissal cases result, which calls for court action.

Filing a wrongful dismissal claim in Vancouver

If you were terminated without proper notice or pay and wish to file a wrongful dismissal claim, contact us at Tim Louis and Company. Our experienced Vancouver employment lawyer will evaluate your case and guide you through the process.

 

 

 

Client Reviews

Long-Term Disability Coverage: How Long Will Benefits Last?

Long-Term Disability Coverage

Long-Term Disability Coverage

Some insurance policies issue payments for a certain amount of years, while other policies may stop payments after up to a decade. The question, unfortunately, does not have a definitive answer, as every insurance policy is unique.

When you read over your employer’s group benefits package, or even if you purchase your own private insurance, ensure that you read through the policy carefully to ensure that you understand the long-term disability requirements. Understanding the requirements, application deadlines, waiting periods and duration of benefit payouts is important.

While every insurance policy handles long-term disabilitycoverage and benefits differently, there are certain aspects to these policies that are mandated by law – this depends on your ability to return to work before your injury and your ability to work, period. There are certain policies that will stop benefits indefinitely after 2 years if you are able to return to any full-time work (regardless if it pays the same as your pre-injury job), while some insurance policies will continue paying out benefits at a reduced rate if you end up securing a new position that pays less than your previous employer. If however, you are unable to return to work, long-term benefits could last for a number of years.

What is Long-Term Disability Coverage?

If you become disabled during employment, Long-term disability insurance coverage pays benefits. Under most LTD policies, in order to qualify for these benefits, you would need to prove that you are unable to continue working as a result of a medical condition. These medical conditions can include physical, psychological, cognitive, and emotional – or a combination of any of the above. If you qualify for LTD coverage, the payout for benefits ranges between 60%-70% of your pre-disability income. There are certain policies that cover less, but most policies will pay benefits for qualified individuals up to age 65.

When Does Long-Term Disability Start?

Long-term disability payments are never available immediately and considered a last resort after short-term disability options have been exhausted. Before you can be approved for LTD payments, you must go through short-term options first – even if following a serious, catastrophic injury. Short-term options may include sick leave and short-term disability benefits.

How Do I Know If I Have Long-Term Disability Coverage?

If you are fortunate enough to have an employer that has provided you with a group medical benefits package, it is likely that you have insurance for Long Term Disability (LTD) coverage, which may also grant you coverage if you have been laid off or terminated from your job. If you do not have group benefits through your employer, you have the option of purchasing a private LTD plan.

Meeting Important Deadlines

There are strict deadlines that go along with long-term disability claims, so it is important to carefully read through your policy to understand the time limits. Failure to submit a claim on time can result in your claim being denied.

What if My Long-Term Disability Claim is Denied?

If you submitted an LTD application and your claim is denied, you will not receive any payments and will be expected to return to work. Claims can be denied for numerous reasons, such as incomplete information, unclear or improper medical treatment or diagnosis etc. Keep in mind, diagnosing mental health can be complex, but insurers are very specific in their guideline requirements. If your claim is denied, you have the right to appeal the decision – an appeal process will commence, which is why it is important that you contact a trusted lawyer that specializes in such long-term disability cases.

How a Long-Term Disability Lawyer Can Help

When understanding the length of your LTD policy, it is important to understand the language and the integral details you should be aware of. At Tim Louis Law, we are experienced with the process of filing long term disability claims and look forward to discussing your unique situation with you. Contact us today for a free consultation by
calling (604) 732-7678 or email timlouis@timlouislaw.com

Source:
https://www.bclaws.ca/civix/document/id/loo69/loo69/13_409_97

Termination Without Cause While on Long-Term Disability

Termination Without Cause

Termination Without Cause – while on long-term disability

The laws covering whether you can be terminated while recovering from long-term disability are complex.

Ordinarily, in a case in which an employee is absent from work as a result of illness or disability, the employer does not have “just cause” to instantaneously terminate the employment relationship, because a mere absence from work due to illness or disability is not a contractual breach.

Since the medical prognosis for many illnesses and disabilities can be very uncertain, when an employee is absent from work, this uncertainty can create difficulties within the workplace.

As a consequence, there are indeed some instances in which you can legally be terminated whilst on disability leave, but only as long as your employer follows the rules. The question is often asked: “When is an employer justified in terminating employment where an employee is absent from work due to a temporary, but prolonged, illness or disability?”

In fact, this question often arises in matters relating to employees who have been away from work and are receiving long-term disability benefits for protracted periods.

Generally, the fundamental issue for terminating an employee who is on long term disability is whether or not that worker has a reasonable prospect of recovering and returning to work in the foreseeable future.

Frustration of contract

Surely, at the beginning of a contract, it is assumed the employee will be fit and able to report to work. However, where an illness or disability prevents the employee from reporting to work, the contract may be “frustrated”. This means the circumstances, which are not the fault of either party, make it impossible to continue with the employment contract, and therefore the employee is excused from reporting to work, and the employer is excused from continuing to employ the employee.

The employer though will have to establish that the worker is incapable of performing the basic duties associated with his or her post, with or without modifications to accommodate restrictions; is incapable of undertaking any other productive work, and, as noted earlier, has no reasonable prospect of returning to work.

This though is subject to applicable statutory entitlements relating to termination pay and severance, and is also predicated on the type of coverage the employee, has as well as whether or not that employee is unionized.

This is because, within the unionized context, an employer’s right to terminate a disabled employee while on long-term disability will depend on whether the dismissal deprives the worker of continued access to negotiated benefits specifically tied to the illness or disability.

One crucial consideration as it relates to termination is the period of past employment. An employment relationship that is of long-standing is not so easily frustrated. For example, an employee who has been working for an establishment for 30 years and becomes afflicted with an illness, absence for two years would not be considered being away long enough to frustrate the employment contract.

That said, the termination of an employee on long-term disability requires careful deliberation and so, an employer ought to first evaluate an employee’s prospect for recovery and return to work, as well as provisions for accommodating him or her.

When to contact a long-term disability lawyer

If your employment was terminated without cause while you were on long-term disability, you should contact a long-term disability lawyer.

If you are searching for a long-term disability lawyer in Vancouver, contact us at Tim Louis and Company. Our Vancouver long-term disability lawyer has over 25 years of experience and would be pleased to assist with your case.

Call us today to schedule a consultation.

How to Prove Constructive Dismissal in a Case

In employment law, constructive dismissal takes place when an employee resigns due to unwanted changes to fundamental terms of their employment contract, or due to the employer creating a hostile work environment.

Despite no actual firing taking place, the conduct of the employer would have to be of such a scale and scope that the employee is at liberty to regard himself or herself as having been dismissed. In other words, since the resignation was not truly voluntary, effectively, it is considered a dismissal.

Constructive dismissal is, however, often harder to prove than many employees tend to think. The responsibility of proving constructive dismissal rests solely on the employee, who must first provide the requisite evidence to prove that a fundamental breach of contract was committed by the employer, whilst the employer’s only requirement would be to prove that the resignation was not forced.

What qualifies as constructive dismissal?

Among the circumstances which may constitute a breach of contract and enable an employee to leave and claim constructive dismissal are:

  • Unfair and unfounded allegations of poor performance
  • Unexpected reductions in wages/salaries, or not being paid when expected, without reasonable explanation or notice
  • A sudden demotion without reason
  • Unreasonable disciplinary procedures
  • Forcing staff to work in breach of health and safety laws
  • A complete change in tasks/duties without adequate notice or training

Once the employer breaches a fundamental term, under the law, he or she is in breach of the whole contract. The employee is entitled, therefore, to accept the repudiation, thus bringing the contract to an end and thereafter sue the employer for damages.

In order to change a contractual term, both employer and employee have to agree to the new terms, as new terms imposed without agreement and consideration may be unenforceable and may also destroy the entire contract.

There are two types of constructive dismissal. In the first, it must be determined that the employer has implicitly or explicitly breached a term of the employment agreement. Thereafter, it must be determined whether or not the breach was of a magnitude that substantially altered the employment relationship.

The second type of constructive dismissal occurs if the employer’s conduct has shown that he or she intends to no longer be bound by the employment agreement. In this case, there may be a series of smaller breaches of the employment contract by the employer or no actual breach. However, the court may examine the employer’s cumulative treatment of the employee to determine if it demonstrates an intention to no longer be bound by the contract.

In proving constructive dismissal, not only is time is of the essence, but the conduct of the employee after the unfair act takes place is also critical. Due to the fact that when an employer imposes new fundamental terms to which the employee does not agree, the employee can be considered constructively dismissed, the employee must withdraw quickly as continuing to work under the new terms may indicate the employee’s acceptance or condone of the change.

At that point, the law will prevent the employee from making any claim for constructive dismissal.

Do you need help proving constructive dismissal in Vancouver?

If you believe you were the victim of constructive dismissal and are searching for an employment lawyer in Vancouver, contact us at Tim Louis and Company.

Our Vancouver employment lawyer would be pleased to assist with your case on a contingency basis. Call us today to schedule a consultation.

Mental Health and Long-Term Disability: Are You Covered?

Mental Health Issues | Tim Louis & Company Law in Vancouver
In the not so distant past, employers viewed mental health issues as temporary and less serious than other physical injuries. At the time, having a mental health disability resulting from a traumatic event was not seen as a legitimate reason to be approved for disability — only physical injuries were considered to be applicable for disability claims. Sadly, psychological or emotional related claims were not seen as harmful to the quality of life.

Today, with more awareness and education about the damaging effects mental health issues can have on individuals and their ability to work and lead a normal, healthy life, mental health is now discussed more and has been proven to be a frequent and substantial issue among Canadians. Each year, thousands of British Columbians miss work due to a mental health-related disability.

Long-term Disability & Mental Health Through Your Employer

As an employee who is covered by a disability insurance policy at work, you as a policyholder/employee have the right to submit a claim for benefits following a lengthy injury or illness. This claim submission will also include diagnosed with mental health conditions. Depending on the type of policy, you may have additional resources available to you where you can receive further assistance on steps to access mental health services, counsellors, and or educational materials where employees can have access to preventative measure guidance.

Time Limits on Recovering

It is important to note that you are not entitled to long-term disability benefits when you begin to experience mental health issues. Just like any other injuries, you must have experienced your disability for 2 years in which you were unable to sustain employment. However, there are some insurance policies that cover claimants under short-disability insurance, so it is important to clearly understand your policy.

No two policies are alike. Be warned that there are numerous insurers that will do all they can to avoid paying out to the applicant. In some cases, even when there is a valid policy in place, insurers will still do what they can to keep from paying out. This is when you need a qualified, trusted long-term disability lawyer who can represent you to fight back. Below are the most common reasons why mental health disability claims can be denied:

  • You have not completed the required details or have not been responsive to the insurer to ensure applications or documentation is updated to fulfill your policy.
  • Failing to seek treatment for mental illness can have numerous consequences for your disability claim. The insurance company may conclude that you refused to take the steps necessary to support your mental illness claim.
  • Your chosen medical professional has not documented your treatment. Insurance companies can deny an application even if your doctor has provided you with a thorough physical examination – if there is not thorough documentation, it is highly likely that your application could be denied.
  • Your doctor may not be providing you with the adequate care you require. An insurance company may deny a claim if they feel you need to see another professional who can provide you with better care for your needs.

Contact Your Trusted Long Term Disability Lawyer

A mental health disability can have a lasting impact on one’s quality of life. If you or a loved one has experienced a mental health issue, contact Tim Louis and his compassionate and experienced legal team today by calling 604-732-7678 or email timlouis@timlouislaw.com.

Long-Term Disability Lawsuits: Know the Steps

Long-Term Disability Lawsuits: Know the Steps

Long-Term Disability Lawsuits: Know the Steps

A long-term disability lawsuit can be an intensive, lengthy process. The time it takes depends on the type of disability plan and can be a complex undertaking. The best option is to contact an experienced and knowledgeable long-term disability personal injury lawyer for trusted advice.

Which Disability Plan Do You Qualify For?

First, your lawyer must determine which disability plan you qualify for:

  • Short-term disability
  • Employer sick pay
  • Employer insurance sickness benefits
  • Canadian pension plan (CPP)
  • Long-term disability
  • Canadian pension plan

Professional Medical Support

Secondly, in order to begin the process, you must have medical evidence supporting your disability claim. Without support from a medical professional, a long-term disability lawsuit claim cannot move forward.

When You Apply for Disability

Ensure that you collect and accurately fill out all related paperwork and/or applications for disability coverage and submit them. If you have any questions, contact your trusted lawyer for clarification – it’s essential that applications for disability are filled out completely before submission, and of course, turned in by the deadline.

Right After You Apply for Disability

Once you have submitted your application for disability, it’s important to know that you may harm your benefits during the transmission period from an employee, to someone on sick leave. For instance, if your employer requests that you accept a severance package, or encourages you to resign from the company, do not agree under any circumstances. If you agree with any of the aforementioned, ruining your chances of receiving disability will be likely (resigning from the company revokes your ability to receive disability benefits).

Waiting for a Decision

In some cases, you may have to be patient when it comes to waiting for a decision to be made on your disability lawsuit. However, generally, it takes roughly 30 days after you have submitted your application. If you have waited longer than 30 days, ensure that you follow up with your lawyer.

When Do I File a Long-Term Lawsuit?

If your disability claim is denied or the amount you sued for is less than you require, your lawyer will assist and collect all of the required documentation to present as evidence for your long-term disability lawsuit. Additional medical examinations may be required to show that you have a disability and are unable to commence work – this filing is called a Statement of Claim.

The Discovery Process

During the discovery process, both parties meet and are interviewed under oath. Your lawyer will spend the time required to prepare you for the questions and explain the entire procedure. Your lawyer will also request all applicable documentation and a detailed explanation as to why their decision was met. Once all information has been reviewed, your lawyer will discuss your options as to whether negotiating a settlement is recommended or whether proceeding to trial is a risk worth pursuing.

Negotiation VS. Trial

Negotiation:

Usually negotiating a fair settlement is a logical alternative than moving forward to trial. If both parties are satisfied with the settlement compensation amount, there is obviously no reason to go to trial and the lawsuit will be dismissed. However, if the insurance company does not agree to a fair settlement, the case can go to trial where an actual judge makes the decision.

Trial:

Trials require substantial preparation and unfortunately may take 2 years or more for the case to even enter the courtroom. A trial, of course, can go two ways: the insurance company can agree to pay you back benefits — plus your current benefits, OR if the decision goes against you, you receive no benefits. Note that a judge may require you to pay part or all of the insurer’s legal fees – one reason why it’s better to reach a settlement over taking a risk by going to trial.

“Oftentimes it’s a relief just to turn the case over to a lawyer so it can be fought vigorously on their behalf…just knowing that someone is fighting the battle so they can concentrate on the quality of life issues can be a huge benefit.” – Tim Louis
http://timlouislaw.ca/bctimlouislaw/long-term-disability-attorney-vancouver-bc/

Tim Louis & Co has been representing those who suffer from long-term disability for over 2 decades. He has successfully sued some of the largest insurance companies in the world on behalf of deserving clients and has appealed the decisions of the Federal government in CPP disability claims on behalf of clients. Tim Louis and his compassionate, experienced team can give you the reliable and trusted advice you deserve. Contact 604-732-7678 or email timlouis@timlouislaw.com for a free consultation.

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