Tag: employment

05 Jun

Employment – with benefits

Suzana Popovic-Montag Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , 0 Comments

If you use news headlines as a guide, it would seem that group benefits at work – health, dental, chiropractic and more – are getting a bad rap, and benefits fraud is the reason.

While the vast majority of employees make legitimate benefits claims, the bad apples get all of the publicity. One of the worst in recent years was the fraud involving the Toronto Transit Commission, which was linked to more than 220 employees who have either been fired or resigned.

In many cases of fraud, service providers collude with benefits plan members to get money out of the plan. So, they claim for orthotics that are never delivered, or claim for prescription glasses but receive designer sunglasses, or submit a receipt for a therapeutic massage when they actually received a sexual massage from a massage parlour.

The chill effect

The trouble with fraud, and all of the warnings about “don’t abuse your plan” is that it can create a chill effect on those who want to use the “health services” part of their plan (in-person treatments and therapies) for legitimate reasons. People can feel that using these benefits outside of an emergency situation equates to taking advantage of their plan. So, they don’t get their knee checked by a chiropractor, or get a back massage for their lower back pain, or get the orthotics they need to prevent problems down the road.

And the most underused benefit area, according to Canada’s largest provider of group benefits, Sun Life Financial, is for psychological services. For Canadian employers with 50 or more employees, 88% of employees make at least one prescription drug claim in a year but only 5% make a claim for psychological services. This is despite the fact that mental health issues are a leading cause of short and long-term disability claims. You can read the full report here.

Think prevention: Make use of your plan

My point is a simple one: employers want employees to take the prevention steps needed to stay healthy. It’s beneficial for both the employee and the business. Yes, there are short-term costs for preventative treatments, but these short-term costs can avoid larger long-term costs, such as multi-year disability leaves. This is especially true for mental health issues.

All to say, if you’re lucky enough to have a benefits plan, don’t wait for an emergency to learn about the preventative treatments available to you. From dental check ups, to mental health therapy, to chiropractic adjustments, there are subsidized treatment options available to help you stay healthy and productive.

Enjoy the rest of your day!
Suzana Popovic-Montag

20 Mar

Contractual Obligations and Estates

Ian Hull Estate & Trust, Estate Planning, General Interest, Litigation, Trustees, Uncategorized Tags: , , , , , , , 0 Comments

An estate trustee may be bound to a contract previously entered into by the deceased. This duty is distinct from the duty of an estate trustee to discharge all debts of the deceased.

There are four main elements of a contract:

  • Offer
  • Acceptance
  • Intention (consensus ad idem/meeting of the minds)
  • Consideration

Prior to the formation of a contract, it is possible for an offer to be revoked by death, if the contract has not been accepted by the surviving party. If performance of a contract has already been initiated by the surviving party, the contract may not be able to be revoked. This is due to the fact that part-performance of a contract may validate a contract. The doctrine of part-performance has been upheld in cases such as Lensen v. Lensen, 1984 CanLII 2424 (Sask CA), and Thompson v Guaranty Trust Co., [1974] S.C.R. 1023.

In general, contracts often will have a clause stating that the terms are binding on the estate of a contracting party. Therefore, if a contract is found to be valid,  the estate of a deceased may be bound by a contract entered into by the deceased. It is important to note that a contract need not be formally executed and signed in order to be considered enforceable by the court.

In Bayer Estate v. Blue Button Club, 2007 BCSC 517, the British Columbia Superior Court upheld a contract on the death of a party. In this case, the deceased, Bernard Bayer, and his employer, Blue Button Club, entered into an employment agreement for 10 years, with an annual base salary of $60,000.00 plus benefits. The contract provided that, upon the death of Bayer, the Club would pay into deceased’s estate an amount equal to the salary and benefits that the deceased would have earned. The amount paid into the estate was to be based on how much time was left in the employment contract. The contract also had a provision naming the Club as a beneficiary of the deceased’s insurance policy, so long as the Club was to maintain insurance on the life of Bernard. Upon the death of Bayer, the Club tried to submit that the employment contract was not enforceable. The Court rejected the Club’s submissions and upheld the contract, requiring the Club to pay the deceased’s salary into his estate.

Aside from part-performance of a contract or having a formally executed contract, it is possible to enter into a verbal contract prior to the formal contract being executed. Where a tentative agreement is reached from oral negotiations, the intentions of the parties are the key factor in determining if a contract is in existence. In attempting to enforce a contract in which one of the parties is deceased, the Court will look to the intention of the deceased in order to determine whether or not they intended for a contract to be formed.

Thanks for reading,

Ian M. Hull

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The Legal and Bioethical Questions Regarding Surrogacy Contracts

Enforceability of Domestic Contracts

16 Jul

Blackberries: Hazardous to your Health?

Hull & Hull LLP News & Events Tags: , , , , 0 Comments

Blackberries and iPhones have been in the news a lot lately. These communication devices seem to have become irreplaceable for many Canadians and their frequent use is having an impact on the work place.

 

This past Monday, the Globe & Mail carried a story about the potential health impacts of the chronic use of these devices. Problems such as Blackberry Belly, caused by slouching when you hunch over to read your screen, and Blackberry Thumb, caused from excessive texting, were just two of the many afflictions cited by a physiotherapist and researchers quoted in the article. Aside from these physical ailments, frequent Blackberry use may also contribute to anxiety.

 

The use of Blackberries after regular work hours also has the potential of becoming a pertinent employment issue with employees seeking compensation for their use outside office hours. Late last month, the Globe & Mail carried a story about the writers’ union for ABC News, the Writers Guild of America. The Guild was challenging a long standing contract waiver that prevented employees from collecting overtime pay for work that was be done after work hours and facilitated via communication devices such as Blackberries.

 

It will be interesting to see if the changing technology will have a long term impact on employee’s work environments, or if this is much ado about nothing.

 

Have a nice day,

Diane Vieira

24 Jul

GOOD WORK IF YOU CAN GET IT

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Wills Tags: , , , , , , , , , , 0 Comments

Mr. Bernard Bayer has won the right to receive a salary from his former employer until March 1, 2012. Unfortunately, Bernard died on April 23, 2005.

In this most unusual case, Bernard’s estate will be entitled to receive payment equal to Bernard’s salary until 2012, notwithstanding Bernard’s death.

The case turns on the peculiar wording of Bernard’s employment agreement with his employer, the Blue Button Club. Pursuant to this agreement, which was entered into on March 1, 2002, Bernard was employed as the Executive Manager of the Club. The agreement had a 10 year term. The agreement described Bernard’s duties at the Club. It provided that he was to be paid at least $60,000 per year.

An unusual provision of the employment agreement provided that the Club was to maintain insurance on the life of Bernard, naming the Club as beneficiary, so that the Club could comply with the termination provisions of the agreement. The termination provisions provided that the employment agreement could be terminated in the event that Bernard failed repeatedly and demonstrably to perform his duties, and failed to remedy this problem after receiving reasonable notice; for just cause; or upon his death, in which case, the Club was to collect the insurance proceeds and pay these to Bernard’s estate.  Apparently, the Club did not take out such a policy of insurance.

In resisting the claim by Bernard’s estate, the Club argued that, prior to his death, Bernard failed to fill his duties. The court rejected this submission, holding that the Club did not provide the required written warning to Bernard.

The Club also submitted that the agreement was not enforceable, and that neither of the parties expected the agreement to be enforceable. The court easily rejected this submission.

As the agreement clearly contemplated Bernard’s death, it was not frustrated by his death.

The court found that Bernard’s estate was entitled to the payments due until the end of the agreement. These damages totalled $410,000.

In this case, the employment agreement was drafted by or on behalf of the Club. The court held the Club to its agreement, notwithstanding its unusual provisions, or the fact that it produced, at least at first blush, an unusual result.

Thank you,
Paul Trudelle

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