Legal Feeds Blog
|Renu Mandhane, chief commissioner, Ontario Human Rights Commission.|
On Feb. 1, the Ontario Human Rights Commission released a policy statement on medical documentation that is needed when disability-related accommodation requests are made. The policy statement refers to the OHRC’s updated policy on the duty to accommodate disabilities and protect the disabled against discrimination that was released last year, noting the role of medical professionals in the accommodation process and the type and scope of medical information needed to give employers.
“One of the obvious big issues for employers especially is what can they ask employees to provide when they’re seeking accommodation?” says Renu Mandhane, chief commissioner of the Ontario Human Rights Commission. “The new policy statement is meant to strike a balance between privacy and dignity [of the person seeking accommodation] and the need for the employer to understand functional limitations, and what they must accommodate.
“I think that a lot of respondents — service providers and employers — they don’t know what they’re allowed to ask for,” says Mandhane. “Our policy [since 2016] says there’s a duty to inquire. So, if an employer believes there may be a disability, the employer may ask about the disability-related issue.”
A duty to inquire about accommodation needs was created under the OHRC’s revised policy of 2016. “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a disability by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation,” according to the OHRC’s Policy on ableism and discrimination based on disability.
The type of medical information that accommodation seekers may generally be expected to provide to support an accommodation request includes:
• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation
• the type of accommodation(s) that may be needed to allow the person to fulfil the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.
Although an employer is entitled to receive this type of medical documentation from a doctor, it is not entitled to “ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability,” the policy states.
“Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation. . . .
“Generally, the accommodation provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. . . . ”
However, “If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.”
The OHRC’s Policy on ableism and discrimination based on disability policy on ableism and discrimination based on disability, released in September 2016, updated the policy and guidelines on disability and the duty to accommodate of 2001; at 99 pages, it is two and a half times as long as the version released 15 years earlier. While the 2001 policy concerned itself with disability accommodations in employment, the updated policy also looks at case law relating to disability discrimination and accommodation in housing and schools, including universities, says Mandhane.
“We’re trying to acknowledge that in the last 15 years . . . we have seen peoples’ request for accommodation extend beyond the employment sector,” she says. “We want to make sure people are being accommodated consistent with the [Ontario] Human Rights Code. Obviously, what we consider a disability has changed a lot in the last 15 years.”
Today, there is increased recognition of mental health problems and chemical sensitivities including those that can prompt acute allergic reactions such as anaphylaxis, Mandhane notes. “These have been recognized as disabilities attracting attention under the Code. . . . We also bring an intersectional lens to unique disabilities” faced by elderly, trans and racialized people, she adds.
Feds seek to settle suits from '60s Scoop 'dark chapter,' Canadian Press
Steve Nash gym owners sue former basketball superstar, Canadian Press
|Criminal lawyer Kathryn Wells calls the program 'a very good step to recognizing what people participating in the administration of justice go through.'|
Yasir Naqvi revealed the new Juror Support Program yesterday afternoon at the John Sopinka Courthouse in Hamilton, Ont. He said jurors play an integral role in the justice system and their communities, and that while it can be rewarding, “serving on a jury is not an easy job by any measure.
“Sometimes, evidence and testimony they have to consider can be graphic and deal with very violent crimes,” he said, adding that exposure to such material can have a lasting traumatic effect that impacts their daily lives and mental health.
“They very much deserve the support for the work they do,” he added.
All jurors will be given a brochure after their trial is done to walk them through the program.
Also present for the unveiling of the program was Mark Farrant, a juror support activist who suffered from PTSD after serving as foreman on the jury of a disturbing 2014 case in Toronto. Naqvi, when new to his role as attorney general, saw Farrant on the news and heard his story of the aftermath of his jury duty.
“It moved me,” Naqvi said. “I contacted my staff to ask for what supports were there for jurors. People like Mark, who have done their duty and then came forward and talked about challenges they face, that’s why we’re here today.”
Naqvi said people are now “far more understanding and thoughtful and sophisticated about talking about mental health challenges.”
Farrant says he saw a gap — and experienced a gap — that impacted him dramatically. He started advocating for more support because he “just didn’t want this happening to somebody else.” He’s talked to jurors from coast to coast and has identified a need not only in Ontario but nationally.
“Even the provinces that purport to have a program in place — they all need to be dusted off and re-evaluated,” he says.
Kathryn Wells, a lawyer with Wells Criminal Law in Toronto, says she thinks the news is fabulous and “a very good step to recognizing what people participating in the administration of justice go through.
“I can’t tell you how many times I’ve done jury trials and seen jurors in tears,” she says. “I think it’s a very, very enormous task for a person to sit in judgment of someone else even without really disturbing evidence. It’s a big job. But then if you impose [upon them] cases where the subject matter is really traumatizing, there’s no question that there’s going to be an impact for some people.”
In response to an audience member’s questions, Naqvi said Hamilton was chosen in part because of the Tim Bosma case, one of the biggest trials in the city’s history. Dellen Millard and Mark Smich were found guilty of first-degree murder in the death of Bosma, a 32-year-old father who disappeared after leaving with the two men to test drive a truck he was trying to sell. The court established that Bosma was shot in his truck by the men and his body was incinerated at Millard’s family farm.
“Hamilton has seen some difficult cases — the Bosma trial is a very good example — so we felt it was appropriate we came to Hamilton to talk about the program and make sure the jurors that were involved in that trial would hear,” Naqvi said.
The program offers up to eight one-hour counselling sessions — four being offered initially, and an additional four if the juror feels they need it — with no out-of-pocket expenses.
Wells says eight sessions sounds “really substantial” considering that the majority of the population doesn’t have benefits, but Farrant says there needs to be a mechanism in place to handle the people who need more help than a pre-determined amount of counselling can provide.
“I fully support the program — it’s the right program, it’s the right approach,” he says. “We just have to ensure that there’s flexibility in the program.”
Farrant says he met with the attorney general and his staff privately to discuss the program, and he brought up his concerns.
“They need a baseline, and they have that baseline, and they’re very cognizant that there will be cases that have to be addressed outside how the program is framed,” he says.
He adds that any additional services beyond the eight sessions have to be offered at no cost as well, as OHIP doesn’t cover the cost of counselling.
Naqvi said during his speech “this is just the beginning” and there will be ongoing assessment and evaluation of the program as it gains momentum. He also said he was comfortable that the cost of the program would be absorbed into the existing ministry budget, with a better idea after intake numbers are established.
“I’m always available for them to bounce ideas off me, and they have done that, and I’m grateful for that,” Farrant says. “I’ve been pretty open and honest along the way. I’m looking forward to working with them on this and being there, in whatever form they require.”
The government hired a third party, Morneau Shepell, to provide the service and ensure confidentiality. Former jurors can call the support line at 1-844-JUROR-ON or visit the program’s website for more information.
When requesting counselling, jurors will need to provide the location of the court where they served on the jury, the dates the trial ran and name of the case. The next step is matching the juror with a qualified counsellor in the area. Jurors can choose to receive counselling over the phone, via email or by videoconference.
Montreal man arrested for alleged hate speech on social media, Canadian Press
- Technology is changing the game, but so is geopolitical impact
NEW YORK — While tech disruption and innovation in the legal market is causing law firms and in-house departments a lot of pain as they try to adapt, no other one trend has been quite so vexing as recent political challenges including the new administration in Washington and the Brexit vote.
|ALM analyst Daniella Isaacson says political and economic disruption is number one issue for legal leaders.|
“What we consistently hear is that the impact of political and economic disruption is their single biggest concern,” said Daniella Isaacson, senior analyst with ALM Intelligence, who speaks regularly with managing partners, general counsel, vendors and consultants in the legal sphere.
Isaacson was speaking together with Nicholas Bruch, senior analyst also with ALM Intelligence, as part of the opening address to the Legaltech conference in New York City today.
Bruch said the biggest concerns for firms and in-house departments are around things they can’t control and regulations are just one big piece of that puzzle.
“If you look across the world, you see this very clearly if you look at the two biggest markets — the United States and the U.K. — what we see is uncertainty. I think it’s safe to say there is a lot of uncertainty over the new administration,” said Bruch, referring to the Trump presidency in Washington. “In the U.K., it’s Brexit that is driving it. We also see a similar story in the EU, in the Middle East and in future of U.S.-Asia trading.”
The global CEO of Dentons, Elliott Portnoy, who appeared in a video as part of the presentation, agreed that regulatory uncertainty is good for business but comes at a time when firms face many other challenges.
“The most consistent theme I hear from clients is that their greatest concern is regulatory uncertainty in key markets and that does create more work for our firm and others but comes at a tricky time for the industry,” he said.
Given this world of uncertainty is one in which law firms and increasingly many in-house legal departments live and work, and as lawyers are also risk managers, the state of the world should not be viewed as a threat but an opportunity to serve as advisers in difficult times.
“For law firms, it means more questions, more clients, more billable hours. For law departments, it’s an opportunity to showcase your abilities to the broader organization,” said Isaacson.
Portnoy said firms like Dentons need to be “far more nimble, far more agile in adopting the same innovation strategies that our clients are using.”
New competitors providing new services are also a threat — not just other law firms competing with each other but also in-house departments competing with law firms and service providers particularly who are creating something entirely different with artificial intelligence, blockchain and machine learning.
Bruch also noted that the in-house departments are also under pressure and are rapidly changing how they source services. There are companies leveraging non-lawyers, virtual lawyers and contract lawyers. ALM Intelligence data shows 80 per cent of law departments are in-sourcing more and 40 per cent are decreasing their use of law firms, while 70 per cent are increasing their use of alternative service providers.
Isaacson said firms can save millions by moving to shared service centres or from re-engineering staffing.
At an earlier session with ALM editors, top trends discussed included a move at some firms with regulatory practices taking on social media work for clients in a model that doesn’t require the staff involved to bill hours. This signals a move toward firms generating revenue in different ways and having to determine how partners take that revenue home.
Requests for proposals also continue to determine who gets work. Often defined as “Flintstone or Jetson” firms — those who demonstrate they are using technology and better understanding how a company works are winning over the Flintstone firms. In one instance, a firm lost a bid when it proposed addressing certain matters by going to trial even though the company had expressed no interest in arriving at a solution that way.
Analytics were also highlighted as a big driver for law firms this past year. There is also a trend toward consolidation in the e-discovery sector, while cloud technology has seen a slower adoption. It is expected that artificial intelligence will pick up speed in the next year or two.
Legaltech continues tomorrow and Thursday.
Two men still in critical condition after Quebec mosque shooting, Canadian Press
- Lawyers north of the border have work to do, says civil liberties group
Canadian lawyers will have important work ahead of them as a result of a controversial executive order by U.S. President Donald Trump, says Sukanya Pillay, executive director and general counsel of the Canadian Civil Liberties Association.
|Stephen Green says the divisiveness of policies introduced by the Trump administration creates an opportunity for Canadian employers looking for talented professionals.|
The executive order — released Jan. 27 — suspended the U.S. Refugee Admissions Program for 120 days. It also stops nationals from Yemen, Sudan, Libya, Somalia, Syria, Iran and Iraq from going into the United States for 90 days.
“I think Canadian lawyers have a lot of work ahead of them.
“One is the immediate response that we can provide to individuals who are going to be stranded at Canadian airports because they cannot board planes if they’re affected by this order,” says Pillay.
The CCLA is calling on the Canadian government to take eight steps in the wake of the order, including boosting the number of refugees accepted into the country and implementing procedures to take applications from asylum seekers impacted by the ban.
“When you have a powerful global actor professing isolationism, and flouting — appearing to flout — international law, even if it’s for only 90 days, it does set off repercussions that are very concerning,” she says.
Pillay says the CCLA is recommending that Canada suspend the U.S.-Canada Safe Third Country Agreement.
In 2002, the two countries signed the agreement, which sets out that “refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement.”
“[A]t this time, if the U.S. is willing to deport people who are fleeing persecution to the risk of human rights violations, then I think we have a legal and moral obligation to not abide by that agreement and allow any asylum seeker to make their claim here in Canada,” says Pillay.
Pillay also says there is also work ahead for corporate and commercial lawyers, as well as human rights and civil liberties lawyers, regarding bundled agreements between Canada and the United States.
“[I]n terms of intelligence sharing and alliances in the global counter-terror fight, we have numerous information-sharing agreements with the United States, and I think that it’s very important that we look at those information-sharing agreements immediately and we set clear limits on what we’re willing to share,” she says.
Stephen Green, senior partner at Green and Spiegel LLP, says he believes that the “divisiveness” of many policies of the Trump administration will push people out of the United States and from considering moving to the country.
“I think that the concept of multiculturalism of Canada is so successful in Canada, and that’s what draws so many people to come here and work, and move,” says Green.
Green says the move might create an opportunity for Canadian employers who specialize in areas such as IT, and it may be able to attract educated professionals from the seven affected countries who cannot extend their visas in the United States.
“We’ve seen a huge increase of very, very successful business people who do not like the Trump policies coming here to set up their businesses here, because they just don’t know what’s going to happen in the next four years with him,” he says.
Green says Canada should continue to accept asylum seekers.
“If these are asylum seekers that are coming from regimes like Iran and various other places, we should [accept them] absolutely,” says Green.
The executive order by Trump states that, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.”
“In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles,” it says. “The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.”
A judge has awarded a Saskatchewan law firm just $21,000 after it asked for $321,000 from the government for work it did representing residential school survivors in the settlement of a class action lawsuit.
In Fontaine v. Canada (Attorney General), Saskatchewan Queen’s Bench Justice Neil Gabrielson found the firm billed the government too much for work related to the Indian Residential Schools Settlement Agreement, a country-wide class action settlement which was approved about 10 years ago.
MacDermid Lamarsh brought a request for direction in 2016 after accounts submitted to the federal government went unpaid. The firm, which was one of 90 firms that represented class members, claimed $321,644 for work done relating to the IRSSA dating back to 2005.
The federal government disputed all of MacDermid Lamarsh's claim except $22,476 in fees for work done under s. 13.02 of the IRSSA, which held that the government agreed to pay lawyers who attended the negotiations for time spent up to the settlement at their normal hourly rate.
On top of the $22,476 it claimed under s. 13.02, the firm also sought $158,766 for work it conducted as counsel that it said was owed under section 13.03. This section held that the government must pay lawyers for work in respect of finalizing the agreement at their hourly rate.
The government argued that the fees the firm sought were excessive and that some of them pertained to work that was done outside of the time that was covered under s. 13.03.
The government also noted that if s. 13.03 actually covered the work the firm had claimed, the government potentially could be billed $13.5 million, if each of the 90 firms that were signatories in the settlement claimed $150,000.
“An obligation to pay each of the IRSSA’s legal counsel or law firm signatories what ML invoiced cannot be reconciled with the intention to confine finalization costs to a modest level,” the decision said.
Gabrielson found that s. 13.03 of the agreement was intended to compensate lawyers for the negotiations leading up to the settlement of the agreement.
“On the evidence, ML was not actively engaged in the negotiations, but has submitted accounts for work that consisted virtually entirely of receiving and reviewing documents,” he said in the decision.
MacDermid Lamarsh also sought $66,161 for costs incurred as a result of executing a 2006 order. The firm argued that the order obliged it to send notices to potential claimants letting them know about the order and of the settlement application, which the firm said the government is obliged to pay for.
Only two other firms had invoiced Canada for expense incurred in sending the notices, according to the decision. One of those firms was not paid, and the other was only paid $400 by the government for postage.
The government contended that once the firm wrote one letter of advice, it should not have needed to spend more time drafting additional letters.
MacDermid Lamarsh also claimed $74,239 for carrying out another 2006 order from later that year, which involved sending opt-out notices to potential claimants.
The judge determined that the firm should not be compensated for its correspondences with potential claimants, and that it should only receive payment for postage, which amounted to $636 for the letters after the first order and $726 for the second round. Gabrielson said the firm had sent out the second round of notices voluntarily without letting the government know it was being done.
The judge ruled MacDermin Lamarsh was entitled to fees claimed pursuant to s. 13.02, plus interest at a rate of five per cent a year, which brought the cost award to $21,534.
This was not the first time the fees law firms have charged in relation to the settlement have come into question. As Legal Feeds reported in 2014, a Manitoba judge ruled a number of lawyers had been overcharging residential school survivors for work related to collecting settlements from the government.
Nolan Courteau, a lawyer with MacDermid Lamarsh, did not immediately respond to a request for comment.
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