April 2009 Archives

By Leanne Goldstein B.A., LL.B. 

An expression of contrition and remorse, an apology can go a long way to healing the emotional wounds that fester in the face of wrongdoing. While an apology cannot undo harm that has been caused, it is a way of showing respect and it is an acknowledgement that another individual has emotions that deserve consideration. Children are taught from a very young age to apologize for wrongdoing and to acknowledge the effects of their negative actions on others.

Unfortunately, the proliferation of litigation in recent times has resulted in an adult society that has shunned the simple apology in fear that it will result in an admission of liability or recrimination. Individuals and corporations are often advised by legal counsel to avoid issuing an apology in cases of alleged wrongdoing.

Doctors and Hospitals for instance, are often cautioned against apologizing for medical errors in order to avoid litigation. They will go to the extent of avoiding all communication with patients in regard to a medical error in order to avoid the possibility that anything said in explanation of what occurred could surface in a law suit.

Ironically, the failure to apologize is sometimes what spurs litigation. Some victims of medical errors commence litigation to seek the answers that they have not received because the doctors and hospitals have been instructed not to communicate with them.

Other litigants are motivated by a desire that there is recognition of the wrongdoing or to ensure that the mistake does not reoccur. It is highly probable that many of these types of litigants may not have commenced litigation had they received an apology.

South Africa embraced the concept of "apology" with the adoption of the Truth and Reconciliation Commission in the 1990's. The Commission was created shortly after the abolition of Apartheid and conducted hearings in which victims of violence and human rights abuses could come forward and tell their stories. Perpetrators of the violence and human rights abuses were also encouraged to come forward, admit to their wrongdoings and offer apologies for their actions.

The Commission was vested with jurisdiction to grant amnesty to perpetrators if the crimes committed were politically motivated, proportionate, and there was full and complete disclosure. Approximately 15% of the perpetrators were granted indemnity from criminal and civil prosecution. In 1998 the Commission presented a report which detailed and condemned the abuses that had been committed.

Although the outcome and efficacy of the Truth and Reconciliation Commission has been debated by many, the fact that Democracy was attained in South Africa post Apartheid without civil war is likely in part testimony to the value of acknowledging wrongdoing and rendering an apology.

After an outbreak of Listeriosis the food-borne illness, caused by the bacterium Listeria monocytogenes, Maple Leaf Foods conducted a very public campaign in Canada. The company CEO held press conferences, ran advertisements on television and in newspapers and posted an apology on the company web site. Instead of being condemned for opening itself to potential lawsuits, the company has been lauded for its effective communication with the public.

On April 15, 2009 a bill (The Apology Act) was introduced in the Ontario Legislature that provides that an apology made would not be admissible in a civil proceeding and would not constitute an admission of liability.

It is not uncommon in our practice to encounter clients who are extremely distressed by the fact that the person or company who caused their injury has never apologized to them or acknowledged their wrongdoing. They will express the fact that they are unable to heal emotionally because of the anger they feel towards those that have caused their injuries. In advocating for our clients, we endeavour to imbue litigation with the human element and attempt to persuade those that we are litigating against that they are dealing with individuals whose emotions are deserving of consideration and respect.

If this legislation is passed, it will be a positive step in recognizing that the victims of wrongdoing are not motivated solely by compensation but are often motivated by the genuine human need for compassion, understanding and the recognition of wrongdoing when it has occurred. 

By Shira Bernholtz B.A., LL.B.

Client Services Lawyer, Share Lawyers, Lawyers

Most people in Canada, even those who have worked for several decades, are unaware of the full benefits of CPP.  Just about everyone knows that there is a retirement pension available once you reach your 60s.  But those premiums you complain about every paycheque also support a disability fund.

If you become medically disabled to continue working, you should apply.  The test for entitlement in the legislation is considered very tough but many people do qualify.  Contrary to some misconceptions, including those held by many doctors, you do not have to be dying or confined to bed.

You do need to apply as soon as possible as CPP will only back-pay a certain time period if you are found to be eligible.  The forms are not difficult but there are several including a medical report.  You can submit more than one medical form from different specialists or from your family doctor and a specialist.  Be sure to keep copies of all papers submitted.

You are supposed to receive an acknowledgement that your application was received.  If you do not, or if more than three months has passed since you have had any communication, call to check on the status of your file.  A final decision usually can take six months to process.

If you are rejected on the first application, submit a request for reconsideration.  The correspondence received from CPP explains the process in detail.  You have to send a note asking for the reconsideration, and can add anything you wish.  The important information is a "targeted letter" from your doctor(s).  This is a note refuting the reason for the refusal by CPP, advising why the decision is wrong from a medical viewpoint. 

There is no need to restate the history.  And we know that the information may be available within the reports and records already submitted to CPP.  However, it is necessary to put the specific details up front to them.

Statistically the further you proceed into the appeals, the higher the percentage of acceptances.

If you are accepted, the benefits are payable to age 65, unless you recover your health.  At age 65 years, the benefit will revert to the retirement benefit calculated on the basis of your contributions.  Having received CPP disability does not affect the amount.

By David Share, President

Share Lawyers, Lawyers 

One of the most challenging aspects of representing people in their disability disputes is figuring out whether we can help them in the first place.   For most people, all they know is that they are supposed to have these benefits that pay them if they are unable to work, and the rest is merely window dressing.    All well and good, but the path to finding a remedy when the benefits are denied is anything but simple.

Is your workplace governed by a Collective Bargaining Agreement?   Are the benefits paid by an insurer in their capacity as a manager of the benefit plan?   When an insurer enters into a contract to manage disability benefits payments for an employer who is financially responsible to pay the benefits?    This contract is usually called an "Administrative Services Only" agreement, or A.S.O. 

Why is this important?   Because, the answers to these questions will determine whether a dispute regarding disability benefits belongs in the courts or must go through the labour relations system.

Disputes that properly arise under a collective bargaining agreement must ultimately be disposed of by way of Arbitration as contemplated by the particular collective bargaining agreement.   Where that is the case, the disabled employee will usually have to seek representation through their union, who will provide a lawyer if required.

As there are numerous unions operating in Ontario, with multiple locals and resulting different benefit plans depending on the particular employer, answering these questions can be a daunting task.   

In these cases, it is imperative for you to determine the correct path as soon as possible so that you do not harm your chances of successfully pursuing your claim due to the running of time.  Consult a lawyer as soon as possible if your benefits have been denied, as time if of the essence and the sooner these questions are raised, the sooner you can determine whether you are the correct path to resolving your dispute.