In January 2016, the Supreme Court of British Columbia released
its decision in Feldstein v 364 Northern Development
Corporation, 2016 BCSC 108. The employee in that case suffered
from cystic fibrosis, a chronic, degenerative disease primarily
affecting the lungs, since the age of nine. The employee stated
that given his condition, he would not have accepted employment
unless it included sufficient and appropriate LTD benefits, i.e. a
benefit equivalent to a significant portion of his monthly salary
and which did not preclude pre-existing health conditions.
After two interviews, the employee then received an email offer
of employment. He responded by advising that he intended to
consider the offer, but required a copy of the benefits brochure
first. The benefits document included details of the LTD plan,
which provided for coverage of 66.67% of monthly earnings to a
maximum of $5,000. However, the benefits summary stated under the
heading "Proof of Good Health" that "approval is
required for coverage in excess of $1,000". When the employee
inquired what constituted "Proof of Good Health", the
employer responded that working for the company for three months
without illness would suffice, notwithstanding his pre-existing
condition or the lack of a medical exam or completed health
questionnaire. The employee accepted the offer of employment.
Subsequently, his health declined and he eventually applied for LTD
benefits. The third party benefits provider approved the
employee's LTD claim for only the "Non-Evidence
Maximum" of $1,000 per month, because he had not completed a
health questionnaire when initially enrolling, which was actually a
The Court found that the employer had negligently misrepresented
the requirement for "Proof of Good Health" in stating
that it merely related to the three months' waiting period
needed to have the plan come into effect. This misled the employee
as to the eligibility requirement for the LTD plan, causing him to
erroneously believe that he would be eligible for coverage
providing for 66.67% of his monthly salary without the need to
complete a medical questionnaire. The employee had reasonably
relied on the misrepresentation in opting to accept the employment
offer. As such, the Court ordered $83,336.80 in damages for lost
benefits, as well as aggravated damages for the mental distress he
To avoid this scenario, employers should be cautious in
answering inquiries relating to their benefits programs from
prospective employees, and not to make representations without
first definitively ascertaining the accuracy of those
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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