This review examines disability issues in the employment context from two perspectives.

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The first is the manner in which claims for disability benefits are presented to an insurer. The overall objective is to examine this issue from the perspective of employment and hence the content focuses on insurance issues in the context of claims made by individuals based on coverage offered by group disability policies. These issues are located on the top line of the header on the main page.

There are a multitude of issues on this topic from the manner of the interpretation of the policy, the tests of eligibility, policy issues, how the claim may be opposed by the insurer due to alleged breach of policy terms and a pre-existing medical condition to name but a few. Limitation issues and the impact of recent amendments on this topic are also important.

Many readers may be surprised to learn, for example, that Ontario’s two year limitation period is not retroactive for existing policies, which remain subjected to the former anachronisms which the new statute was intended to eliminate.

Also important is the role of the employer as the agent of the insurer and also the liability of the employer in negligence in the administration of the policy. The law on this latter issue has allowed claims in negligence against the employer, a concept which has been denied in employment cases.

Of course, the duty of good faith of the insurer in the administration and assessment of the claim is an important topic. Also significant is the manner and consequences of the termination of the group policy.

The persons likely most vulnerable to the issues of group disability are, ironically, white collar workers who no doubt do not spend their evening hours reading the arcane terms of a disability policy. The issues of active employment, elimination period, own and any occupation and the array of legal issues confronting termination of insurance will surely enter their vocabulary only upon denial of a claim, when their life is suddenly in disarray and in need of the financial comfort of a “peace of mind” contract.

These persons lack access to the expertise of professionally trained union representatives who know how to negotiate the best terms of a disability policy. The non-unionized worker may be startled to learn that CPP disability benefits reduce disability income, even dollar for dollar when the CPP is taxable and the disability sum is not. It is this person who is need most of direction and guidance as this review offers on this subject.

Lastly, the controversial question of benefits offered by an Administrative Services Only agreement is considered. It remains bewildering why such ASO plans are allowed to continue.

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In addition, this analysis deals with common law and human rights remedies due to adverse treatment on account of a disability. This includes a review of common law tort remedies against the employer for such unfair treatment and also claims against the employer when it has caused the disability. Also considered is the issue of frustration due to a permanent disability.

The impact of the termination of insurance coverage upon the claim for benefits is also reviewed. This is particularly important in the context of termination of employment and a subsequent disability within the statutory or common law notice period.

Also reviewed are human rights remedies due to adverse treatment for a disability, usually due to the failure to accommodate. Claims for lost income and reinstatement can be at times nothing short of gargantuan, and well in excess of what a common law claim for wrongful dismissal might yield.

In one case a lost income award due to the failure to accommodate the disability was made of three years’ pay. In another, a medical doctor’s application for a post-graduate specialized training was delayed due to a mental disability resulting in a six-year salary loss of $385,000.¹ Another tribunal case set the lost income award for an 8.5 year period from the date of dismissal to the date of hearing plus reinstatement, again due to the failure to accommodate. ²

The issue of disability in an employment context raises a multitude of issues, some of which are summarized above. It is intended that this review will explore all of such questions and more, as well as to enlighten and educate the reader to recognize disability issues when they arise and how to tackle them.