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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Do Your Employees Require Time Off To Vote?

Posted in Elections, Employer Obligations, Legislative Requirements
Donovan Plomp

Under the Canada Elections Act (“Act”), all Canadian employers (with some limited exceptions in the transportation industry) must ensure their employees have 3 consecutive hours free from work during opening hours for polls on election day.  According to the Act, polls are open for each electoral district of Canada as follows:


(a) from 8:30 a.m. to 8:30 p.m., if the electoral district is in the Newfoundland, Atlantic or Central time zone;

(b) from 9:30 a.m. to 9:30 p.m., if the electoral district is in the Eastern time zone;

(c) from 7:30 a.m. to 7:30 p.m., if the electoral district is in the Mountain time zone; and

(d) from 7:00 a.m. to 7:00 p.m., if the electoral district is in the Pacific time zone.

However, it is important to recognize that employees are not entitled to a three hour break from work. Rather, it is only if an employee does not have three consecutive hours off already that an employer must accommodate them.  Further, the scheduling of the employee’s time to vote is at the convenience of the employer, though, in certain circumstances, it is time that must be paid by the employer.

Ensuring employees have time off to vote while minimizing costs and disruptions to an employer’s business can be done in a number of ways, depending on the terms of the employment contract with the employee:

  1. If an employee’s contract permits his or her schedule to be varied according to the employer’s needs, the employer can adjust it to ensure the employee has 3 consecutive hours free to vote, without cost. For example, for an employee with a varying schedule that is supposed to work 9-5 on election day in British Columbia, the employer could ask him or her to work 10-6, or 8-4, to ensure he or she has 3 consecutive hours from work to vote.
  2. Alternatively, if the same employee is entitled to work 9-5 without adjustment by the employer, the employer could allow the employee to start at 10, or leave early at 4, but in either case would have to ensure the employee is paid for the full shift of 9-5.
  3. Though it is more costly, but depending on the nature of the employer’s operations, the employer could also allow an employee with a set 9-5 schedule to take 3 consecutive hours off in the middle of the day, all of which must be paid.

Overall, it is important to remember that, while adjustment to schedules may be made for employees who are subject to such terms in their employment agreements, the Act states and includes punitive provisions so that no employee is penalized or made to suffer a deduction in pay for voting.

Record-high B.C. Human Rights Tribunal Damages for Injury to Dignity Overturned

Posted in Discrimination, Human Rights
Laura DeVries

Last year, we reported on a decision of the B.C. Human Rights Tribunal which awarded $75,000 in damages for injury to dignity, feelings, and self-respect, more than twice the previous high water mark ($35,000) in similar cases.  The B.C. Supreme Court has now ruled that the $75,000 award was unreasonable in the circumstances.  The decision likely signals at least a pause in the expansion of such awards.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability.  He experienced significant difficulties completing his residency program rotations.  Dr. Kelly consulted various specialists during the 21 months he tried to satisfy the program requirements, and UBC attempted to accommodate him.  However, Dr. Kelly continued to perform below expectations in many of his rotations. Eventually, after further medical assessments, UBC decided that Dr. Kelly was unsuitable for the program and discharged him with two months’ severance pay.  The Tribunal found UBC’s actions to be discrimination in employment and in the provision of services customarily available to the public.

The Court upheld the Tribunal’s finding of discrimination.  However, it found that the Tribunal’s damages award for injury to dignity was not justified in the circumstances.

The Court stated that there is no official cap on the amount of damages that can be awarded for injury to dignity, feelings, and self-respect, but nonetheless held that the Tribunal’s award was patently unreasonable in the circumstances of the case.

UBC had argued that the award was excessive for several reasons, including because the Tribunal had overemphasized the fact that Dr. Kelly was engaged in medical training, rather than other types of training or employment.  UBC contended that the award therefore created a two-tiered system − one for professions, and one for mere employees.  The university also argued that the unprecedented award was at odds with the expectations created by previous awards.

The Court agreed with UBC, stating:

While the circumstances are unquestionably “serious”, I see nothing about them that is “unique” in the sense that Dr. Kelly suffered an injury to a greater extent than others who have lost their jobs and/or opportunities as a result of discrimination.  Nor do I see anything to indicate why $75,000 is “reasonably proportionate” to Dr. Kelly’s injury, but apparently too high for those persons who have previously been awarded $35,000 or less.

The fact that Dr. Kelly was in a medical program is not a reasonable basis for more than doubling the previous highest award for similar discrimination.

The Court also pointed out that Dr. Kelly was not the only one dealing with a unique situation.  The educators and committees at UBC were operating in exceptional circumstances, and had made decisions that they considered were in the best interests of the residency program.

The Court sent the issue of the appropriate damages award back to the Tribunal for reconsideration.  It declined to suggest that Dr. Kelly’s award should not be more than $35,000, but noted that it could see no principled reason that his award should be more than double the previous highest award.

This does not mean that such an award might never be granted or upheld; awards for injury to dignity are based on individual circumstances.  However, this decision signalled quite clearly that the mere fact that a complainant was employed or sought employment in a traditionally prestigious field should not, on its own, warrant drastically higher damages.

McCarthy Tétrault launches Québec Employer Advisor blog

Posted in Employment Standards, Labour Relations

McCarthy Tétrault launched its 14th blog today, Québec Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies in Québec. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Québec marketplace. We encourage you to visit the blog and subscribe for regular updates.

Please note that for the time being, all articles will be published in French only.

Make Whole Remedies and Good Faith Crucial to Mitigation

Posted in Best Practices, Damages, Litigation, Termination, Wrongful Dismissal
Ryley Mennie

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.

In Fredrickson v. Newtech Dental Laboratory Inc.,  Leah Ann Fredrickson had worked for Newtech, a specialty dental laboratory, for about 8.5 years, when she took a leave of absence in connection with her husband’s illness and an accidental injury to her son. Newtech’s owner, Vince Ferbey, took issue with the manner in which Ms. Fredrickson took the leave and the effects on Newtech’s operations. When Ms. Fredrickson returned to work on July 20, 2011, Mr. Ferbey advised her that she was being laid off and gave her her Record of Employment.

Ms. Fredrickson considered that she had been dismissed and, on September 9, 2011, her counsel delivered that message to Newtech. Newtech responded through its counsel on September 23, 2011, directing Ms. Fredrickson to return to work on September 26, 2011, pursuant to the “lay off” and noting in a further letter on September 26 that, even if she had been wrongfully dismissed by Newtech, she had a duty to mitigate her damages and accept Newtech’s offer of re-employment. Ms. Fredrickson did not accept Newtech’s offer, but instead, on October 18, 2011, commenced an action for wrongful dismissal.

Prior to knowing about the action, on October 19, 2011, Newtech offered to re-employ Ms. Fredrickson, and offered to pay her unpaid wages from July 20 (the date of the “layoff”), until September 23, 2011 (the date she was directed to return to work on September 26). Newtech repeated this offer on three subsequent occasions, the final being on April 19, 2012. Ms. Fredrickson declined all offers on the basis that Newtech’s conduct since July 20, 2011, had broken the employment relationship and made it reasonable for her to decline re-employment in a small dental office. Aside from the nature of Newtech’s offer of re-employment, Mr. Ferbey had surreptitiously recorded two conversations with Ms. Fredrickson during their dispute and had discussed her employment situation with another employee, including that Ms. Fredrickson would be “too embarrassed to return to work” after her medical leave.

At trial, Newtech eventually conceded that Ms. Fredrickson had been terminated on July 20, 2011, not laid off. Accordingly, the only issue was damages, and in particular, whether Ms. Fredrickson had failed to meet her duty to mitigate when she declined Newtech’s offers of re-employment and payment of wages from July 20-September 23, 2011.

Newtech was initially successful, with the trial judge finding that Ms. Fredrickson had acted unreasonably in declining Newtech’s first offer of employment on September 23, 2011. Accordingly, she was only entitled to damages from the date of the termination to the date of Newtech’s offer.

The court of appeal ruled that the trial judge had erred regarding mitigation in two ways:

  1. First, by failing to give significance to the incomplete nature of Newtech’s offers of re-employment. When Newtech first offered to re-employ Ms. Fredrickson on September 23, 2011, it did so on the basis that Ms. Fredrickson was being “recalled” and, accordingly, did not provide Ms. Fredrickson with the wages she had not been paid since July 20, 2011, which were necessary to make Ms. Fredrickson “whole”. The lack of an offer of a “make whole” remedy that would put Ms. Fredrickson into the position she would have been in had Newtech not wrongfully dismissed her on July 20, 2011, got progressively worse with Newtech’s subsequent offers.
  2. Secondly, by “failing to reflect the intangible element of mutual trust…that flows like a river in the employment relationship”. The court of appeal discussed the integrity of the employment relationship and the inherent mutual trust, referring to the Supreme Court of Canada’s recent decision in Potter v. New Brunswick Legal Aid Services Commission in which the Court refers to the obligations of good faith between employees and employers. In Fredrickson, the court found that the surreptitious recording and subsequent use of conversations between Mr. Ferbey and Ms. Fredrickson and the breach of Ms. Fredrickson’s confidence when Mr. Ferbey discussed her employment situation with another employee had eroded the mutual trust and good faith at the heart of the employment relationship. This made it reasonable for Ms. Fredrickson to refuse Newtech’s offers of re-employment

In the end, the court of appeal set aside the mitigation finding and remitted the question of Ms. Fredrickson’s damages to the trial judge.

This case is instructive for employers in that, when there is a disagreement about decisions in the workplace (as the court of appeal held, “[t]he case is a story of initial misunderstanding and miscommunication”), employers must be cautious to undo the misunderstanding to its prior state. Offering re-employment that falls short of a ‘make whole’ remedy will be closely scrutinized and may make it reasonable for an employee to decline the offer, despite the employee’s duty to mitigate. Secondly, surreptitiously recording conversations with an employee and discussing their personal circumstances with other employees is never a good idea, particularly in a small workplace.  This decision follows on recent decisions from the Supreme Court of Canada (including Potter, above, and Bhasin v. Hrynew) where the Court emphasizes the general obligations of good faith and honesty in contractual dealings, particularly in the employment context.

Foreign Laws Create Human Rights Headaches for Canadian Employers

Posted in Discrimination, Human Rights
Christopher McHardy

The reality of the global economy is that business decisions are frequently made based on factors from both inside and outside Canada’s borders. Employers in industries that may be subject to foreign laws, regulations or decisions can face real challenges if those factors affect their Canadian legal obligations, particularly when it comes to human rights issues.  Throw in some uncertainty when a foreign decision is based on unknown security threats, and it can be a recipe for a long legal struggle.

Bombardier Inc. (Aerospace Training Centre) (“Bombardier”) faced this issue, and over a decade of human rights proceedings, when it refused to train Javed Latif, a Canadian citizen who was born in Pakistan. Ultimately, the Supreme Court of Canada sided with Bombardier and held that Mr. Latif had not been discriminated against on the basis of his ethnic or national origin, as he had alleged, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre).  The Court’s unanimous decision, although siding with the employer, contains a number of cautions to employers in similar situations.

Mr. Latif’s human rights complaint began after he attempted to train with Bombardier to operate a Bombardier Challenger 604 (“CM604”). Mr. Latif had flown planes since 1964, and had obtained his U.S. pilot’s license in 1991 and his Canadian licence in 2004.  When he was offered a job flying the CM604, he first applied to train in Bombardier’s Dallas centre, under his U.S. license.  That application process was delayed waiting for security clearance, so in March 2004 Mr. Latif tried to register for the training under his Canadian licence at Bombardier’s facility in Montreal.

In April 2004, Mr. Latif was informed that the U.S. Department of Justice (“DOJ”) had refused his security screening request, despite his forty years of flying experience. DOJ provided no explanation for the refusal. When Mr. Latif followed up on his training request with Bombardier in Canada, he was told that Bombardier could not train him under his Canadian licence, either, since it had to comply with DOJ’s decision on security.

After further probing, Mr. Latif was told by DOJ that his application had been denied on the ground that he posed a threat to aviation or national security in the United States. Mr. Latif made numerous requests for his file to be reviewed by the U.S. authorities, as well as requests to be trained on other types of aircraft. All his applications were refused until 2008, when DOJ finally lifted the prohibition on Mr. Latif’s training, again, without providing reasons.

These tightened security measures in the U.S. had been implemented following the terrorist attacks on September 11, 2001, and Mr. Latif concluded that the denial of security clearance was based on racial profiling, since he was born in Pakistan. He filed a complaint with the Commission des droits de la personne et des droits de la jeunesse in Quebec (the “Commission”) and, after an investigation, the Commission began proceedings at the Human Rights Tribunal on the basis that Bombardier’s refusal to provide Mr. Latif with pilot training violated his right to freedom from discrimination based on ethnic or national origin, under the Charter of Human Rights and Freedoms (the “Charter”). Mr. Latif was successful at the Tribunal, which awarded an unprecedented $320,000 in damages and ordered Bombardier to stop applying and considering the standards and decisions of the U.S. authorities.

On appeal by Bombardier, the Quebec Court of Appeal set aside the Tribunal’s decision on the basis that there was no proof of a connection between the decision to deny training and the alleged prohibited ground of discrimination. Mr. Latif appealed the Court of Appeal’s decision.

In a unanimous judgment, the Supreme Court of Canada dismissed the appeal and held that there was no evidence that Mr. Latif had been discriminated against on the basis of his ethnic or national origin. The Court emphasised that the burden of proof remains on the complainant/plaintiff to prove all three elements of a prima facie case of discrimination, those elements being:

  1. A distinction, exclusion or preference;
  2. Based on one of the listed prohibited grounds;
  3. Which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.

If these elements are met, a prima facie case of discrimination is established. Only then does the burden of proof shift to the respondent/defendant to justify the conduct through exemptions or defences.

Mr. Latif failed on the second element of the test, because he did not prove that a prohibited ground – in this case, ethnic or national origin – played a role in Bombardier’s refusal to provide training. Clarifying the test for this second element, the Court held that a complainant must show that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference or, in other words, that the ground in question was a factor in the distinction, exclusion or preference.

The Court criticized the Tribunal’s conclusion that the U.S. authorities’ decision stemmed from measures targeting people from Muslim countries, including Pakistan. The Court held that the Tribunal’s ruling was unreasonable, since the expert evidence it relied heavily upon “dealt only with the Islamophobic social context in the United States and with government programs other than the [security screening program, which did] not support the Tribunal’s inference.” In short, the Supreme Court could find neither direct nor circumstantial evidence from which it could infer that Mr. Latif’s ethnic or national origin played any role in DOJ’s unfavourable reply to his security screening request.

Despite this positive finding for Bombardier, the Supreme Court of Canada was also careful to warn employers that they cannot simply defer to a decision from foreign authority in order to justify a breach of human rights. The Court stated that its decision “does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability”.

Employers with operations affected by laws, regulations or decisions from other jurisdictions therefore must be careful to balance their extra-territorial obligations with their duty to accommodate and otherwise comply with Canadian human rights laws. Accepting foreign decisions indiscriminately may not withstand a human rights challenge.

Illegal Toker or Legitimate Smoker? Marijuana-Smoking Employee Lawfully Dismissed

Posted in Accommodation, Human Rights
Kirsten Hume

Given the increasing availability and use of medical marijuana in British Columbia, employers are often faced balancing the need to ensure a safe workplace and an employee’s right to legitimate medical treatment. A recent decision of the BC Human Rights Tribunal gives employers some welcome clarity on the limits of the duty to accommodate, the nature of bona fide occupational requirements (“BFORs”), and the legality of “zero tolerance policies” regarding drug use on the job.

In French v. Selkin Logging, the Tribunal dismissed a complaint brought by Mr. French, a heavy equipment operator for a logging company.  Mr. French alleged that his employer discriminated against him on the basis of disability by, among other things, not permitting him to smoke marijuana for pain management on the job.

Mr. French was treated for cancer in 2009 and returned to work in 2010.  It was widely known, including by his supervisor, that Mr. French was smoking marijuana on the job.  He and another employee shared six to eight joints a day during coffee and lunch breaks.

Mr. French’s supervisor only confronted him about his smoking after months of complaints from other employees and, more particularly, after Mr. French and a co-worker struck a moose with a workplace truck.  Marijuana was later found in the vehicle.  The supervisor told him that the company had a zero tolerance policy for drug use on the job; Mr. French later received a letter stating that his employment would be terminated unless he agreed to return to work “drug free”.

Mr. French asserted that he needed to smoke pot to manage his pain and that his physicians directed him to do so, as his cancer had recurred.  However, on probing this issue further, the Tribunal found that: he did not have a prescription; his doctors had not told him to smoke marijuana, and that there was no evidence that any doctor had condoned his smoking at work.  While the Tribunal could not determine whether the marijuana was “medical grade”, there was also no evidence that Mr. French was impaired on the job.

The Tribunal accepted that Mr. French was disabled, that he used marijuana for pain management, and had been terminated for using marijuana.

However, the Tribunal also found that the employer’s zero tolerance policy was a BFOR, even though it exceeded the minimum standard under occupational safety laws (which focus on impairment and endangerment at the workplace, rather than setting a zero tolerance rule).

First, the zero tolerance policy was created for safety reasons and properly linked to the performance of Mr. French’s job.  Second, it was adopted in the honest belief that it was necessary.  Third, it was reasonably necessary: the employer could not accommodate Mr. French’s smoking without undue hardship.

Because Mr. French’s marijuana use was not authorized, and thus illegal, it could not be treated like other medications.  Although there was no evidence that Mr. French was impaired or posed any danger, that did not mean the zero tolerance policy was unreasonable or unnecessary.  The employer’s delay in enforcing the policy did not preclude it from enforcing it later.  Further, Mr. French had not informed his employer of his need to smoke or otherwise facilitated the accommodation process.

In the circumstances, the requirement for reasonable accommodation did not require the employer to abet Mr. French’s smoking marijuana at work.

Key takeaways

The French decision highlighted several important points for employers:

  1. It may be within employers’ legitimate management rights to impose a general rule prohibiting the consumption of drugs or alcohol at the workplace, especially where workplace safety is of particular concern. On the other hand, policies that rely on strict application of a zero tolerance rule, without considering accommodation in individual circumstances, may offend the Code if, for example, an employee is legitimately using marijuana for medical purposes.
  2. A zero tolerance policy should not be found unreasonable simply because an employee has not shown signs of impairment or inability to work safely.
  3. Where an employee is using drugs such as marijuana on the job without proper authorization, or without disclosure to the employer, a court or tribunal may be less likely to find an employer’s refusal to permit such drug usage to contravene the Code.
  4. An employer’s delay in enforcing a drug policy will not necessarily preclude later enforcement (although it is preferable to administer policies promptly and consistently).
  5. The duty to accommodate is subject to reasonable limits, and does not rest solely on the employer. Employees must facilitate accommodation, and their failure to do so may result in their complaints being dismissed.

New Human Rights and Privacy Protections For ‘Genetic Test Results’ Introduced

Posted in Discrimination, Human Rights, Legislative Changes, Privacy
Donovan Plomp

Federally-regulated employers may soon be seeing changes to privacy and human rights laws in relation to genetic information. On June 9, 2015, the federal Minister of Justice introduced Bill C-68, otherwise known as the Protection Against Genetic Discrimination Act. The bill is aimed at better protecting persons’ genetic information in Canada. The latest version of the bill can be found here.

Bill C-68 will clarify the law relating to the use, collection, and disclosure of genetic information by amending three pieces of federal legislation: the Canadian Human Rights Act, the Personal Information Protection and Electronic Document Act (PIPEDA) and the Privacy Act. The bill proposes an amendment to the Canadian Human Rights Act that will prohibit discrimination based on genetic test results. In addition, it clarifies that genetic testing information qualifies as “personal information” protected by the Privacy Act and PIPEDA.

Further discussion of the proposed changes and their effects on the legislation identified above can be found in the government’s press release here.

If and when Bill C-68 becomes law, the contemplated amendments to the legislation noted above will have the effect of expanding federal employers’ responsibility and potential liability when collecting, using and disclosing genetic information – from candidates for employment, to employees, to the customers and clients they serve.

While Bill C-68 itself may die on the table with the anticipated federal election this fall, further revision to federal government policies and consultation with provincial and territorial governments and industry to encourage similar changes in those jurisdictions is also expected. We will be sure to keep you updated on developments.


SCC Grants Leave to Appeal on Canada Labour Code Without Cause Dismissal

Posted in Litigation, Termination, Wrongful Dismissal
Kirsten Hume

Our colleagues in Ontario recently posted here on the case of Wilson v. Atomic Energy of Canada Limited,where the Federal Court of Appeal held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code. This was a welcome clarification in the law for federal employers, who had previously been faced with a line of authority from adjudicators which limited without-cause dismissals to very narrow circumstances.

The Supreme Court of Canada has granted the dismissed worker leave to appeal the decision, meaning that employers will soon see a definitive ruling on this issue. We will be sure to keep you updated on the outcome.


New Investigation Requirements, On-The-Spot Financial Penalties and Work-Stop Orders In Wake Of Babine and Lakeland Sawmill Disasters

Posted in Investigations, Legislative Changes, Occupational Health and Safety, Workers Compensation, WorkSafeBC
Christopher McHardyWill Skinner

Before the Babine and Lakeland sawmill disasters in 2012, employers were already under an obligation to investigate any workplace incident involving serious injury or death, major structural failure or collapse, major release of a hazardous substance, a blasting accident that caused personal injury, a dangerous incident involving explosive, a diving accident, any accident or other incident that resulted in injury to a worker requiring medical treatment, and any near misses.

Now, as a result of amendments to the Workers’ Compensation Act (WCA), following Royal Assent to Bill C-9 on May 14, 2015, the manner in which employers carry out such investigations has been regulated as a mandatory two-phase process. Employers must now complete a preliminary investigation within the first 48 hours of the incident and a full investigation within 30 days.  In addition, on-the-spot financial penalties may be assessed against employers for certain violations of the WCA and the threshold and obligations regarding work-stop orders has been expanded.  A summary of the legislative changes pursuant to Bill C-9 can be found here.

On May 27, 2015, WorkSafeBC’s Board of Directors approved interim policies to govern employers’ compliance with the new investigation requirements under the amended WCA.  Details regarding the policy requirements for the preliminary investigation can be found here, and for the full investigation here.  A summary of the changes under the WCA and the operation of the interim policies can be found here.

WorkSafeBC is also seeking stakeholder input regarding its discussion paper and proposed changes to work-stop orders under the WCA.  As stated in the discussion paper,

Changes to the [WCA], effective May 14, 2015, expand the criteria and lower the threshold for issuing stop work orders. The changes also allow WorkSafeBC to stop work or prevent working from starting at multiple locations for an employer (“stop operations”) where similar unsafe conditions are likely to exist at the other locations.

Employers are encouraged to review the discussion paper and proposed changes and to weigh in with comments, here.

The British Columbia Employers’ Advisers Office expects to have final policies regarding employers’ investigation obligations in place by the end of December 2015. We will keep you posted on new developments.

Further Guidance From the Privacy Commissioner

Posted in Best Practices, Privacy
Ryley Mennie

Following our post, here, regarding the outcome of the investigation conducted by the Office of the Information and Privacy Commissioner (“OIPC”) into the District of Saanich spyware complaint, the OIPC has published guidelines for B.C. employers to follow when implementing IT protections to ensure privacy legislation is complied with, found here. In conjunction with the best practices identified in our post, the OIPC’s guidelines are a useful reference that can help employers protect their businesses and avoid privacy complaints.  It is worth noting that the OIPC’s guidelines are guidelines only and do not have the effect of law. That said, the OIPC has based these guidelines on its interpretation of privacy legislation and they are worth reviewing.