Thursday, March 31 & Friday, April 01, 2011 • Sutton Place Hotel, Toronto, Ontario

1. How to Avoid Being the Next Keays: Panel Discussion on the Evolving Burden of Proof

Soma Ray-Ellis
Partner and Co-Chair, Employment and Labour Law
Group, Himelfarb Proszanski LLP

Howard Seiden, MD, MSc, FCFP, FAADEP
Seiden Health Management Inc., Canadian Benefits
Management Limited, Assistant Professor, Dept. Family
& Community Medicine, University of Toronto

• The evolving burden of proof: What is required in proving the existence of a mental illness or addiction?
• Principles from Andrew Scarlett and Hamilton Health Sciences: Reducing exposure to discrimination claims under human rights legislation for failure to obtain sufficient medical documentation in a timely manner
• Establishing the boundaries in what medical information an employer is entitled to request
• Is an employer permitted to contact an injured employee’s doctor for information regarding the extent of the disability?
• Understanding the limitations of employee privacy and disclosure rights
• Managing the expectations of an employer surrounding the IME process
• Maximizing IMEs: Examining the strategic use of independent medical examinations, and setting the doctor up for success
• How to get more out of the family doctor: obtaining better and more detailed information from the GP

 

2. Case Law Update: Minimizing Your Risk of Increasingly High Damage Awards

Kecia Podetz
Emond Harnden LLP

The body of arbitral and court decisions is rapidly expanding with recent high damage awards against employers, including in unionized environments. This is a brief overview of the highlights from recent Ontario and national cases, with a particular focus on preventing large damage awards.

• An update post-Honda v. Keays. Availability of tort claims for negligent infliction of mental suffering in the workplace
  • Ongoing guidance for employers pending an anticipated appeal to the Supreme Court in Piresferreira v. Ayotte
• Strategies to accommodate employee child care obligations
• How to manage fraudulent sick leave claims and lessons learned from Greater Toronto Airport Authority v. PSAC
• A review of recent damage awards by human rights tribunals for employers’ failure to accommodate
• Understanding the legal consequences of inconsistent enforcement of harassment policy and flawed investigations (Disotell v. Kraft)

3. Improving Relationships with Insurers: A Disability Management Perspective

Carol MacDonald
Director of Occupational Therapy Services
LifeMark Health

• How to work collaboratively with disability management experts for assistance with workplace reintegration and reducing absenteeism
• Establishing parameters in structuring work modification and accommodation plans in a lean Human Resources environment
• Strategies to facilitate approval by adjusters and adjudicators of ergonomic and other medical recommendations
• Minimizing the recurrence of disability following a return to work
• Focusing on disability insurance: Exploring the legal implications of denying benefits
  • Reliance upon independent assessments to reduce your exposure to litigation
  • A fresh perspective on employers’ rights and obligations in accommodating employees who return to work after being denied benefits
  • Innovative ideas for managing unionized workplaces

4. WSIB Work Reintegration Policies: An Overview of the New Policies

Elizabeth Kosmidis
Hicks Morley Hamilton Stewart Storie LLP

The Workplace Safety and Insurance Board (WSIB) has implemented five new policies to replace the existing policies relating to early and safe return to work, re-employment and work transition (formerly Labour Market Re-entry (LMR)).  The primary focus of these policies is to ensure that an injured worker returns to work with his or her employer. These policies significantly change how employers must now respond to meet their legal obligations.  Employers who fail to consider these policies may be faced with a re-employment penalty or the new and even more significant non-co-operation penalty. Elizabeth Kosmidis will provide a general overview of these policies and some strategies on how employers must now respond to meet their legal obligations.

• Strategies and Best Practices in dealing with the WSIB
• Ensuring that you meet your legal obligations
• Avoiding the Non-co-operation Penalty
• What is suitable work
• Work Transition Plans

5. Evolving Trends in Family Status Accommodation: When does everyday care-giving become a workplace accommodation?

Case Study – Johnstone v Canada Border Services

Paula Turtle
Senior Legal Counsel
United Steelworkers

Owen V. Gray
Arbitrator & Mediator

David K. Law
Partner, Gowling Lafleur Henderson LLP

• Learning plaintiff and defence perspectives on family status claims
• What is required of an employer in conducting an appropriate investigation?
• How has Johnstone modified the accommodation landscape post-Campbell River?
• Exploring the scope of family leave in the accommodation context
• Identifying the expectations of employees and unions in advancing a family status claim

6. Maximizing Dispute Resolution Tools to Avoid Costly Litigation

Jeffrey Goodman
Partner, Heenan Blaikie LLP

Owen V. Gray
Arbitrator & Mediator

Matthew R. Wilson
Labour Relations Counsel, Regional Municipality
of Durham

• Effectively utilizing dispute resolution to keep decision making power in your hands: Key strategies for success
• Considerations in choosing the most appropriate venue to suit your needs
• How to prepare your case to achieve success in resolving the claim
• Strategies to minimize claims imparting a negative business image
• What does the future hold for the Ontario Human Rights Tribunal? Will the new proposed Tribunals Cluster prolong accommodation claims?
• Comparison of the federal and provincial systems: What is the acceptable standard in accommodation for large multi-national organizations?

7. Proven Techniques to Increase Employee Cooperation throughout the Accommodation Process

Robert Monti
Partner, Nelligan O’Brien Payne LLP

In this session, you will learn strategies from plaintiff ’s counsel to help you improve communications with employees to streamline the accommodation process.

• Exploring the legal obligations of an employee in facilitating the implementation of an accommodation proposal
• Identifying the parameters of the duty to cooperate in providing consent to obtain medical documentation
• What are the repercussions of not identifying problems or seeking assistance at an early stage?

8. Best Practices in Moving Toward Termination: Emerging Principles from the Case Law

Andrea York
Partner, Blake, Cassels & Graydon LLP

When legitimate performance issues that warrant termination are attributed to employees with a history of illness or disability, the risk of litigation is great. This session will teach you how to navigate the legal minefield associated with terminating the employment of accommodated employees, or those that have a history of disability.

• How can a leave of absence result in frustration of the employment contract?
• When does a failure to return to work following the denial of disability benefits constitute job abandonment?
• Strategies for moving toward termination
• Considerations for severance agreements
  • Notice and severance considerations
  • Benefits considerations
• Exploring the operational impact of automatic termination clauses

9. Compliance with the Accessibility for Ontarians with Disabilities Act (AODA)

Carol VandenHoek
Partner, Member National and Southwestern Ontario
Labour and Employment Law Groups
Miller Thomson LLP

All businesses with at least one employee must be in compliance with the new legislation by January 1, 2012. In this session, you will hear concrete examples of compliant clauses for the customer service standard and policies under Bill 168.

• An introduction to the AODA: Who must comply and when?
• What requirements must an employer meet under the service standard to successfully pass the inspection and enforcement systems, and to avoid the embarrassment of an appearance before the Licence Appeal Tribunal?
• Additional requirements applying to public sector organizations with 20 or more employees
• Best practices for interacting with disabled persons, both employees and guests
• Deconstructing an accommodation plan: Design and implementation strategies
• Updates for constructing an effectual and compliant harassment policy in the context of Bill 168

10. Identifying and Managing Responsibilities with Aging Employees and Religious Accommodation Requests

D. Brian Loewen
Senior Counsel, Ministry of Government Services

Tom Moutsatsos
Partner, Hicks Morley Hamilton Stewart Storie LLP

• Strategies to manage health and safety issues in the workplace for aging employees in the era of an aging society
• Identifying whether declining performance at work is related to age, and your accommodation obligations towards aging employees with growing limitations
• Best practices in due diligence and dismissal of aging workers through offers of early retirement, termination or lay-off
• What are the obligations of an employer in a religious accommodation request?

Conference Concludes