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Tort Claims

Finding of negligence upheld for pre-hiring misrepresentations

Jurisdiction: - British Columbia
Sector: - High Tech

The B.C. Court of Appeal recently upheld one of the infrequent successful employment law tort claims in Feldstein v. 364 Northern Development Corp., [2017] BCCA174. The plaintiff, who suffers from cystic fibrosis, alleged the employer advised him in the pre-hiring phase that "proof of good health" for the purpose of his LTD coverage required only that he make it through the three-month waiting period prior to the plan coming into effect. However, when he required access to his benefits he was denied full coverage on the basis he had a pre-existing condition. 

The employer argued at trial that the representation was not made, the test for negligence was not met, and also that it was entitled to rely on an "entire agreement" clause in the contract. The trial judge rejected these arguments, and awarded the plaintiff over $83,000 in lost benefit payments, and $10,000 in aggravated damages. 

The Court of Appeal refused to interfere with the trial judge's findings concerning the negligence claim. It further found the entire agreement clause was not drafted in such a way as to protect the employer from the specific misrepresenation it made.   read more »