Out of the Blue by Jan Wong: A Review – by an Employment Lawyer…

I picked up Jan Wong’s latest book Out of the Blue out of professional interest.  As an employment lawyer, I had heard that the book was an interesting assessment of Ms Wong’s fight with the Globe and Mail, her former employer.

Although the dispute with The Globe and Mail plays a significant role, this memoir style offering is much more concerned with Ms Wong’s battle with depression and her struggle to overcome it.

It is a very intimate, personal look at a person struggling to deal with mental illness.  Ms Wong spends of great deal of time dealing with the effect that her depression had on her relationship with her family members, her interactions with family and friends and her own very personal ways of trying to overcome these challenges.

Early in the book, Ms Wong describes the events that she believes triggered her depression.  A well known, accomplished columnist for many years, she wrote a column analyzing the Dawson College shooting in Montreal, Quebec in September 2006.  The column drew a connection between the fact that the only three campus shootings in Canada had been committed by immigrants in Quebec and that the three killers had been marginalized by a society that values pure laine Quebec stock.

As if to partially substantiate her claims, Ms Wong was flooded with angry hate mail, much of it in French. She received mail that attacked her ethnicity, her gender, and her appearance.   She was subjected to outrageous, vulgar email attacks and, ultimately, a death threat.  She was also attacked by mainstream media, including major Quebec newspapers.  The Globe and Mail itself printed numerous articles responding harshly to Ms Wong’s column and there was even a call in the Canadian Parliament for her to “apologize” to the people of Quebec.  Things became worse as caricatures of her were drawn in Quebec newspapers, her father’s restaurant was boycotted and the Globe and Mail eventually printed a column indicating that Ms Wong had erred.

Frustration of Contract: Disabled Employee Loses Wrongful Dismissal Case

If an employee becomes totally disabled and cannot return to work, the employer may be able to end the employment relationship without any further obligations.  This doctrine of “frustration” was recently analyzed in the case of Fraser v. UBS Global Asset Management, a decision of the Ontario Superior Court of Justice.

Linda Fraser had worked for UBS for more than 20 years.  She became ill after a holiday and was off work for six months on short term disability leave.  She tried to return to work but was unable to do so due to her illness, which had become more severe.  She went off again on short term disability leave for another six months.  After her second leave, Ms Fraser was off for a two year period on long term disability leave.

Most LTD policies change after two years.  For the first two years, Ms Fraser was required to show that she could not perform the duties of her employment, meaning the specific job that she had with UBS.  After two years, she was required to show that she could not perform the duties of any gainful occupation.  The insurer cut Ms Fraser off benefits when the definition changed and Ms Fraser sued the insurer to challenge that decision.  The lawsuit was totally separate from her wrongful dismissal case.

From UBS’ perspective, Ms Fraser’s disability coverage ended even though she was suing the insurer.  She was off work and no longer in receipt of benefits for a period of five months.  She did not keep UBS informed about her status.  After five months, UBS wrote to Ms Fraser and stated that her employment was being terminated.  It paid her out 8 weeks’ notice pay and 22 weeks’ severance pay under the Ontario Employment Standards Act and continued her extended health benefits for three more months.  Ms Fraser did not accept this decision and sued for wrongful dismissal.

Employer’s Obligation to Accommodate Disabled Employees is Limited: Hydro-Québec

Employer’s Obligation to Accommodate Disabled Employees is Limited: Hydro-Québec

In August 2008, the Supreme Court of Canada issued a relatively short and unanimous decision addressing the issue of frequent absences and discussing the obligations of employers in handling these absences.

This case originally came from an arbitrated dispute involving a union. The employee had a lengthy record of absences – missing 960 days of work over a span of 7 years. The employer had adjusted working conditions to try to meet the employee’s needs but these efforts had not been entirely successful. Eventually, the employee brought a physician’s note indicating that she would “no longer be able to work on a regular and continuous basis without continuing to have an absenteeism problem”. The employer dismissed the employee, who then filed a grievance. At arbitration, the arbitrator held that the employee was unable to work for the foreseeable future, as required, and the employer had no further obligations. The case made its way up to the Supreme Court of Canada after the Québec Court of Appeal overturned the lower Court decision and sided with the employee.

The Supreme Court of Canada discussed the concept of “undue hardship” when an employer is required to accommodate a disabled employee. Employers must be flexible in adopting a standard that is appropriate – to ensure that the employee can work. However, the employer does not need to “alter the essence of the contract of employment”. Employers should be required to offer their employees variable work schedules, lighten work loads or authorize shift transfers if these steps can be taken to accommodate the needs of disabled employees.

The Court noted that if an employee’s illness means that “the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test” and will not be required to keep the employee any longer.

The Supreme Court’s decision in this case is not strikingly different from existing case law dealing with disabled employees. Employers have never been required to provide that it is “impossible” to accommodate a disabled employee. Employers should not be required to create entirely new positions or put up with inappropriate levels of chronic absenteeism. Although this decision is another victory for employers, it was a unanimous decision of the Supreme Court of Canada which did not fundamentally change the law.

The one concern that employees may have however, is the absence of genuine empathy in the decision in reviewing the case history. Where Supreme Court of Canada decisions in the past have focused on “vulnerable employees” and the sheer gap in bargaining power between employees and employers, this Supreme Court of Canada decision is most concerned with employer needs to carry on business efficiently and productively.

Perhaps it is too early to assess the impact of this type of thinking on other factual scenarios, but this decision is one of a number of significant decisions issued by the Supreme Court in 2008. All of the decisions sided with employers. Looking at the language used in Hydro-Quebec and the results of the other decisions, employees in Canada certainly have cause to worry about what other decisions might be coming down the pipeline.

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