Header graphic for print

British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Rejected Job Applicants Obtain Disclosure of Application Records Under Privacy Law

Posted in Employer Obligations, Privacy
Laura DeVries

The British Columbia Information and Privacy Commissioner (the “Commissioner”) recently ordered Compass Group Canada Ltd., a food, cleaning and maintenance service company (“Compass”), to disclose all records related to the job applications of a group of rejected applicants.

This decision provides insight into the disclosure obligations of private organizations. Organizations cannot refuse to disclose records containing personal information on the basis that they contain confidential or personal information protected by the Personal Information Protection Act (“PIPA”) if the offending portions of the documents can be redacted.


PIPA governs how private organizations handle personal information and creates rules regarding its collection, use, and disclosure. Section 23(1)(a) of PIPA gives individuals the right to access their personal information that is under the control of an organization. Compass Group Canada Ltd., 2018 BCIPC 06, is a decision of the Commissioner dealing with a request for disclosure under this section.

The applicants had applied for employment with Compass. When they were not hired, the applicants requested that Compass disclose their job application records. Compass provided some records, but withheld others. After mediation failed, 11 of the 52 applicants asked the Privacy Commissioner to conduct an inquiry.

The Commissioner ruled that Compass must disclose all of the requested documents with certain portions redacted to protect the privacy of other individuals.

The Commissioner’s Decision

The Commissioner rejected Compass’ argument that it should be authorized to disregard the disclosure requests because they were frivolous or vexatious. The Commissioner pointed out that Compass had not raised this issue previously, and that by the time of the inquiry, Compass had already responded to the requests (by refusing to disclose), and thus had nothing to gain.  The Commissioner also rejected Compass’ argument that it should not have to disclose the records because it would be “frivolous” to duplicate information that the applicants had themselves provided to Compass during the interview process.

Compass’ key argument was that the records, which consisted of job interview forms containing template questions and “tick” boxes; reference forms; and one-word handwritten notations regarding hiring decisions, could not be disclosed, or were not required to be disclosed, because they fell under the following exceptions to disclosure:

  1. confidential commercial information that could harm Compass’ competitive position (the exception in s. 23(3)(b) of PIPA);
  2. personal information about another individual (the exception in s. 23(4)(c)); and
  3. the identity of an individual who provided personal information about the applicants and who does not consent to disclosure of his or her identity (the exception in s. 23(4)(d)).

The Commissioner held that the records did not contain confidential commercial information that could harm Compass’ competitive position. Contrary to Compass’ argument that the records reflected its “staffing and recruitment strategy”, there was nothing unique about the format or content of the interview questionnaire, the reference check forms, or the notations regarding the hiring decisions.

The Commissioner did agree with Compass that the records revealed certain personal information of other individuals (interviewers’ and referees’ names and hiring recommendations) and the identity of the individuals who provided information who had not consented to this disclosure. Section 23 of PIPA required Compass to withhold this latter information, but Compass was required to provide the applicants with access to their personal information if it was able to remove the information that had to be withheld. The Commissioner noted which portions of the documents must be redacted and ordered Compass to disclose the rest.

Key Takeaways

This case is a reminder that the disclosure obligations for organizations under PIPA are significant, and the net that PIPA casts over personal information is broad. Personal information is defined as any information about an identifiable individual with only very narrow exceptions.  In this case, it encompassed job application records, some of which were provided by the applicants themselves.

As a matter of procedure, if an organization considers that a disclosure request is frivolous or vexatious, it should ask the Commissioner for authorization to disregard the request prior to responding in any way.

Finally, organizations cannot refuse to disclose records containing personal information on the basis that they contain protected information under PIPA if those portions can be redacted.

* This blog post was prepared with assistance from Sarah Blanco, Articled Student.

BC Court of Appeal clarifies employee’s duty to mitigate and necessary deductions for “avoided”, and “avoidable”, loss

Posted in Employee Obligations, Litigation, Mitigation, Termination, Wrongful Dismissal
Ryley Mennie

In Pakozdi v. B & B Heavy Civil Construction Ltd., 2018 BCCA 23, the British Columbia Court of Appeal addressed the treatment of replacement income in the calculation of damages for a wrongfully dismissed employee. The  Court of Appeal also overturned an award of eight months’ reasonable notice for an employee with only one year of service and considered a plaintiff’s entitlement to fringe benefits during the notice period.


Mr. Pakozdi was a bid estimator and construction professional who commenced employment with B & B Heavy Civil Construction Ltd. in early January 2014. During his employment, and with the consent of B&B, Mr. Pakozdi provided consulting services to other clients. In January 2015, B & B terminated Mr. Pakozdi without cause and provided him with approximately two weeks’ pay in lieu of notice. After his termination, Mr. Pakozdi increased his consulting work and generated significantly more income from his consulting business than he had during his employment with B & B.

Mr. Pakozdi sued B & B for wrongful dismissal. The trial judge held Mr. Pakozdi was entitled to five months’ notice of termination. However, upon consideration of Mr. Pakozdi’s “worsened medical condition” and his resulting vulnerability, the trial judge increased the notice period award to eight months. The trial judge also held that Mr. Pakozdi’s post-termination consulting earnings should not be accounted for when calculating damages, on the basis that B & B condoned these activities while he was employed.


B & B appealed the decision on the grounds that i) eight months’ notice was unreasonable, particularly given Mr. Pakozdi’s short service, and ii) the trial judge erred in failing to reduce Mr. Pakozdi’s damages for his increased consulting earnings after termination.

The Court of Appeal agreed with B & B on both grounds, finding that an employee’s vulnerability, while it may be appropriate to consider as part of the notice assessment in certain circumstances, is not be an independent factor that increases the notice period, particularly where the evidence is that it did not, in fact, limit the plaintiff’s ability to earn income post-termination. The reasonable notice period was reduced from eight months to five months, which the Court held was “on the high side”.

Regarding Mr. Pakozdi’s damages, the Court clarified that, in wrongful dismissal claims, an employee’s damages may be reduced for “avoidable loss”, i.e. evidence that the employee failed to take reasonable steps to avoid the loss resulting from a wrongful dismissal, and/or for “avoided loss”, which is what a wrongfully dismissed employee actually earns to replace the income lost by virtue of the wrongful dismissal.

The Court of Appeal relied on the latter principle and found that the trial judge was “too categorical” and erred in excluding all of Mr. Pakozdi’s post-termination consulting work income. In cases where an employer condones an employee’s supplementary income-earning activities during employment, the Court of Appeal confirmed that only the earnings that the employee “could have earned while continuing with the first [employer]” can be excluded from the reasonable notice damages assessment. In the result, the Court concluded that approximately $30,000 of Mr. Pakozdi’s post-termination earnings was replacement income that amounted to avoided loss, and deducted this amount from his damages for wrongful dismissal.


Finally, the Court also considered Mr. Pakozdi’s cross-appeal that the trial judge erred in not awarding him damages for his inability to participate in B & B’s RRSP matching program during the reasonable notice period. The Court confirmed the principle that “a plaintiff cannot recover for fringe benefits that would have been paid by the employer unless the employee has in fact incurred the expense during the notice period”. The Court noted, however, that this principle does not fit well with “benefits such as matching expenses to a group plan, where the employee cannot make the expenditure that would trigger the employer match once he has been dismissed”.  The Court relied on the basic principle that a wrongfully dismissed plaintiff “is entitled to compensation for the loss of the opportunity to share in whatever pecuniary benefits would have flowed from being an employee during the notice period”. Acknowledging that wrongful dismissal damages are an assessment rather than a precise mathematical calculation, the Court awarded Mr. Pakozdi $2,500 for the lost opportunity to participate in B & B’s RRSP matching program.

Key Takeaways

Pakozdi is a good reminder and summary of the principles underlying an employee’s “duty to mitigate” following a wrongful dismissal, and confirms that post-termination income in excess of  supplementary income that an employee has earned while employed is properly deducted from a wrongful dismissal damages award. The decision also reiterates the framework for the assessment of reasonable notice, and is a caution against introducing new factors to increase the notice period without a reasonable foundation.

If you have any questions about the reasonable notice assessment and how mitigation may affect this analysis, please do not hesitate to contact a member of our Labour and Employment group.

*drafted with the assistance of articling student, Alyssa Leung.

ONCA Affirms an Offer of Employment by the Purchaser of Business Assets to an Employee of the Seller is Valid Consideration for a New Employment Contract

Posted in Employer Obligations, Employment Standards, Termination
Monique Ronning

In Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873, the Ontario Court of Appeal confirmed that s. 9(1) of the Employment Standards Act, 2000 (the “Ontario ESA”), deems there to be continuity of employment for the purposes of the legislation only, and does not displace the common law rule that an offer of employment by the purchaser of the assets of a business is valid consideration for a new employment agreement.


In May 2000, Nadesan Krishnamoorthy began employment as a senior financial analyst with Carsen Group Inc. (“Carsen”).  About five years later, in 2005, Olympus Canada Inc. (“Olympus Canada”) agreed to purchase some of the assets of Carsen, and offered employment to most of Carsen’s employees, including Mr. Krishnamoorthy, then the Director of Finance.

Olympus Canada and Mr. Krishnamoorthy executed a new written employment agreement (the “Employment Agreement”). The terms and conditions of the Employment Agreement were substantially similar to those Mr. Krishnamoorthy had with Carsen, except for two provisions: (a) a termination provision, which limited Mr. Krishnamoorthy’s entitlements upon termination of employment without cause; and (b) a clause stipulating that Mr. Krishnamoorthy would be treated as a new employee with no recognition for previous service with Carsen, except as required by applicable legislation (the “New Terms”).

Olympus Canada did not offer and did not provide Mr. Krishnamoorthy with any additional consideration when he accepted the Employment Agreement, or at any time prior to the commencement of his employment with Olympus Canada.

In May 2015, Olympus Canada terminated Mr. Krishnamoorthy’s employment without cause and provided him severance in accordance with the termination provision in the Employment Agreement. Mr. Krishnamoorthy refused the severance and sued Olympus Canada for wrongful dismissal.

On a motion for summary judgment, Mr. Krishnamoorthy argued that his employment between Carsen and Olympus Canada was deemed to be continuous pursuant to section 9(1) of the Ontario ESA, and Olympus Canada’s failure to provide him with fresh consideration in exchange for the Employment Agreement rendered the New Terms unenforceable. Section 9(1) of the Ontario ESA reads:

If an employer sells a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee shall be deemed not to have been terminated or severed for the purposes of this Act and his or her employment with the seller shall be deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.

The motion judge agreed with Mr. Krishnamoorthy’s position and awarded him $310,040.88 in damages for failing to provide adequate reasonable notice of the termination of his employment (equivalent to 19 months’ pay in lieu of notice). Olympus Canada appealed.

The Ontario Court of Appeal Decision

The Court of Appeal overturned the motion judge’s decision, concluding that Mr. Krishnamoorthy could not rely upon s. 9(1) of the Ontario ESA for the purpose of establishing that the New Terms were unenforceable for lack of consideration. The Court of Appeal explained that the application of s. 9(1) is limited to deeming employment continuous only “for the purposes of this Act.”

Further, the Court of Appeal affirmed the following statement from Addison v. M. Loeb Ltd., 1986 CanLII 2474  (ONCA), regarding the sale of all or part of the assets of a business:

At common law, since a contract of personal services cannot be assigned to a new employer without the consent of the parties, the sale of a business, if it results in the change of the legal identity of the employer, constitutes a constructive termination of the employment.

If the employee is offered and accepts employment by his new employer, a new contract of employment is entered into.

Thus, the Court of Appeal held that Olympus Canada’s offer of employment was sufficient consideration on its own, and Mr. Krishnamoorthy could not rely on s. 9(1) of the Ontario ESA to rebut that conclusion.


The BC Employment Standards Act, RSBC 1996, ch 113 (“BC ESA”), contains a similar provision to s. 9(1) of the Ontario ESA. In particular, s. 97 of the BC ESA states that “[i]f all or part of a business or a substantial part of the entire assets of a business is disposed of, the employment of an employee of the business is deemed, for the purposes of this Act, to be continuous and uninterrupted by the disposition.” Consequently, Krishnamoorthy may be of interest to employers in British Columbia because the conclusion of the Ontario Court of Appeal may be applied by the courts in British Columbia.

In summary, where the purchaser of all or part of the assets of a business offers employment to a seller’s employee, and the employee accepts, the following common law rule applies: the employee’s employment with the seller is constructively terminated, and a new contract of employment is entered into with the purchaser. Krishnamoorthy affirms that a purchaser’s offer of employment is valid consideration for the new contract of employment between the purchaser and employee, even if the new contract of employment differs from the employee’s previous employment agreement with the seller.

Finally, purchasers must still ensure that all terms in the new employment agreement comply with minimum standards of applicable employment standards legislation, taking into account the employee’s period of service with the seller. In Krishnamoorthy, the Ontario Court of Appeal did not decide the question of whether the termination clause in the Employment Agreement was invalid for failing to comply with s. 9(1) of the ESA; this matter was sent back to the lower court for determination. However, if a termination provision in a new employment agreement with a purchaser fails to provide for the legislated minimum requirement for termination notice, pay or benefits, calculated by reference to the employee’s length of continuous employment, then the termination provision may be found to be invalid, and the employee may be entitled to reasonable notice at common law.

* This blog post was drafted with assistance from James Parker, Articled Student.


BC’s hourly minimum wage will increase (again) effective June 1, 2018

Posted in Employment Standards, Legislative Changes, Wage and Hours
Donovan Plomp

This morning, Premier John Horgan announced changes to BC’s minimum wage. The current hourly minimum wage of $11.35 was implemented on September 15, 2017. This rate will increase as follows:

  • June 1, 2018 will increase by $1.30 to $12.65
  • June 1, 2019 will increase by $1.20 to $13.85
  • June 1, 2020 will increase by $0.75 to $14.60
  • June 1, 2021 will increase by $0.60 to $15.20

As reported by the provincial government (here), the gradual increases are intended to “allow employers time to plan and absorb additional labour costs.”

The announced increases pertains only to the hourly minimum wage. It is anticipated that increases will also be introduced for farm workers, liquor servers, and other workers who have separate minimum wages under the Employment Standards Regulation (B.C. Reg. 396/95).

Please contact us directly if you would like more information about any increase in wages affecting your workforce and the related amendments to the Employment Standards Regulation.

BCHRT Considers the Duty to Inquire as to the Presence of a Mental Disability

Posted in Discrimination, Human Rights
Laura DeVries

Generally, before an employer can be required to accommodate an employee’s mental disability, the employer must know, or ought reasonably to know, that the employee has such a disability in the first place. It is usually up to the employee to inform the employer of the disability.

If, however, the employer has reason to suspect a disability, the employer may have a “duty to inquire” as to whether the employee has a mental disability, before taking steps that would negatively affect the employee. A failure to make such an inquiry may lead to a finding of discrimination. The recent decision of Hammell v. Corporation of Delta and another, 2017 BCHRT 246, sheds helpful light on the question of whether and how the duty to inquire arises.


The City of Delta (“Delta”) operates the Winskill Aquatic and Fitness Centre (the “Centre”). In January 2016, the complainant, a man in his late 50s and a long-time user of the Centre, was involved in an incident (the “First Incident”). The complainant swam up to three nine-year-old boys playing on a floating raft in the Winskill pool and engaged them in conversation. Due to their discomfort with the situation, the boys swam away.

The aquatic leader of the facility spoke to the on-call manager about the interaction and expressed a belief that the complainant exhibited autistic tendencies, but was not threatening or inappropriate in a sexual way. In response to concerns expressed by a parent of one of the boys, the on-call manager instructed the aquatic leader to ask the complainant to leave. The complainant took offence and later sent an e-mail asserting he was badly jet lagged at the time and meant no harm.

Several months later, the complainant was involved in a second incident, this time relating to a request for personal training services (the “Second Incident”). The complainant contacted Delta and indicated that he wanted to have a particular female trainer, Ms. L, train him. He wrote: “if there was at least a young, hot female trainer like [Ms. L] the pleasure of just being in her presence might help me overcome the pain enough to actually come in consistently to keep my nose to the grindstone.” Upon seeing the e-mail, senior Delta staff revoked the complainant’s facility privileges immediately.

The complainant appealed his banishment. The complainant, an American, asserted that Delta had overreacted to his comments about a “hot” female trainer, stating: “In New Jersey that adjective, in that context would not be considered ‘inappropriate’. Most Jersey girls would just be flattered by it”. His appeal was unsuccessful.

The complainant then claimed that he suffered from reactive hypoglycemia, and that when his blood sugar is off, it can impair his cognition and adversely affect his judgment and behaviour. He suggested that his behaviour in both incidents had been influenced by his hypoglycemia, and claimed that hypoglycemia can cause depression.

The complainant filed a complaint with the B.C. Human Rights Tribunal (the “Tribunal”) alleging discrimination by Delta and a senior staff member (the “respondents”) in the provision of an accommodation, service or facility on the basis of mental disability, contrary to the B.C. Human Rights Code. The respondents filed an application to have the complaint dismissed summarily, which required them to demonstrate that the complaint had no reasonable prospect of success.

The Tribunal’s Decision

The Tribunal found that the complainant had some reasonable prospect of establishing that he had a protected characteristic – in this case, the disability of reactive hypoglycemia and depression – and that he had suffered adverse treatment in that he could no longer use the Centre.

The remaining and key issue was whether his alleged disabilities were a factor in Delta’s decision to banish him. A corollary issue was whether the respondents had a duty to inquire as to whether he had a disability.

The Tribunal found that the complainant had no reasonable prospect of establishing that the respondents knew or ought to have known he had a mental disability. The complainant had simply opined after the fact that his behaviour must have been driven by symptoms he was experiencing related to his hypoglycemia.  Nothing suggested that the complainant’s disabilities were either known or readily observable.

Addressing the complainant’s argument that his unusual conduct should at least have alerted the respondents as to the possibility of a disability and triggered the duty to inquire, the Tribunal observed that whether the duty arises turns on the “details of the information available to potential complainants and respondents” and that this information must be assessed in the context of the circumstances at the time.

Beginning with the First Incident, the Tribunal noted that the complainant had attended the Centre for years without exhibiting signs of mental disability, was well known to staff, and had frequently struck up conversations with persons of all ages. Further, the aquatic leader’s observation that the complainant had exhibited autistic tendencies was made in the context of his explanation to the on-call manager that the complainant was not threatening or inappropriate in a sexual manner. No duty to inquire arose in relation to the First Incident.

As for the Second Incident, the Tribunal stated that complainant’s e-mail was inappropriate and his subsequent attempts to justify his conduct undercut his argument that his conduct was induced by a disability causing momentary cognitive impairment. In the circumstances of such a stereotypical sexual objectification, Delta had a duty to address employee concerns. No duty to inquire arose in relation to the Second Incident.

In the result, the complaint was dismissed as having no reasonable prospect of success.


At the most basic level, the complaint in Hammell failed because, even assuming the complainant’s alleged disabilities could be proven, there was no evidence suggesting that his conduct was influenced by those disabilities, and therefore the alleged adverse treatment could not form the basis of a discrimination claim. In other words, there was no connection between the disabilities and the adverse treatment.

As for the duty to inquire, the decision emphasizes the highly contextual assessment of whether or not the duty arises. Hammell also confirms that in cases of alleged discrimination in the provision of services or facilities to the public, a complainant will have difficulty establishing discrimination where the service provider did not know, or could not reasonably have known, about the complainant’s disability. This lesson can be applied equally in the employment context.

* This blog was written with the assistance of Connor Bildfell, Articling Student.

BCCA Issues Guidance on the Role of Unions in the Employee Accommodation Request Process

Posted in Accommodation, Human Rights, Labour Relations
Christopher McHardy

In Telus Communications Inc. v. Telecommunication Workers’ Union, 2017 BCCA 100, the BC Court of Appeal held that the Telecommunications Workers’ Union (the “Union”) did not have the right to participate in all employee requests for accommodation. An application for leave to appeal the Court of Appeal’s decision was recently dismissed by the Supreme Court of Canada, making the Court of Appeal’s decision the final word on the matter.


The Union brought a grievance alleging that the employer, Telus Communications Inc. had breached the relevant collective agreement, the Canada Labour Code, and the Canadian Human Rights Act by refusing to provide the Union with notice, information, and consultation in respect of all employee requests for accommodation to address a medical disability. Telus took the position that the Union was only entitled to such notice, information, and consultation where the accommodation required a change in the collective agreement or where the employee requested Union representation. Otherwise, Telus maintained, the Union did not enjoy the rights it asserted.

Arbitrator Sullivan upheld the grievance and concluded that the Union was entitled to notice, information, and consultation in respect of all employee requests for accommodation for a medical disability. He held that the exclusive bargaining authority of the Union, flowing from the certificate of bargaining authority under the Canada Labour Code, gave the Union the rights it claimed. Arbitrator Sullivan reached this conclusion despite the absence of any express term in the collective agreement providing such rights – in fact, the record revealed that during the bargaining process, the Union had attempted unsuccessfully to negotiate a provision explicitly granting it the rights it now claimed it was entitled to. Telus applied for judicial review.

On judicial review, the BC Supreme Court set aside the arbitrator’s decisions as unreasonable (2015 BCSC 570). The Union appealed. 

The BC Court of Appeal’s Decision

The BC Court of Appeal upheld the BC Supreme Court’s ruling quashing the arbitrator’s decision. In the course of its analysis, the Court of Appeal found that the non-discrimination provisions of the collective agreement, which adopted the obligations set out under the Canadian Human Rights Act, did not provide a basis for the Union’s participation in all employee requests for accommodation. The Court of Appeal reasoned that while some requests for accommodation may involve discriminatory circumstances, it could not be said that all requests involve discrimination.

The Court of Appeal also confirmed that, although a union has a role to play in the accommodation process when its participation is required to alleviate the application of a term contained in the collective agreement, the union’s role in the accommodation process does not necessarily extend to all cases. The Court of Appeal affirmed that in the absence of negotiated right, the Union does not have a general right to participate in matters of accommodation.

The Court of Appeal ultimately concluded that the “pillar of reasoning” supporting the entire arbitration decision – namely, that the collective bargaining authority of the Union compelled its engagement in all requests for accommodation for medical disabilities – was in error and was unreasonable. It could not be said that the certificate of bargaining authority granted the Union the exclusive rights it claimed. Accordingly, the Court of Appeal held that the judge below had correctly concluded that the arbitrator’s decision could not stand.

Key Takeaways

Telus has significant implications for the role of unions in the accommodation process. The case confirms that employers with a unionized workforce will generally be required to engage the union in respect of an employee’s request for accommodation where:

  1. required pursuant to a term of an applicable collective agreement;
  2. the union has participated in creating a discriminatory policy or rule;
  3. the union’s participation is required to facilitate the accommodation; or
  4. the employee has requested the union’s representation in connection with the request.If you have any questions about how this decision may affect your business, do not hesitate to contact one of the members of our Labour and Employment group.

However, unless at least one of the four conditions listed above is met, employers may be permitted to deal with the employee directly in relation to a request for accommodation, as the matter falls within the employer’s right to direct and manage the workforce.

* This blog was written with the assistance of Connor Bildfell, Articling Student.

BC Supreme Court Awards Aggravated Damages In The Absence of Medical Evidence

Posted in Damages, Litigation, Termination, Wrongful Dismissal
Monique Ronning

In the wrongful dismissal case, Ensign v. Price’s Alarm Systems, 2017 BCSC 2137, the British Columbia Supreme Court made an aggravated damages award in the absence of any medical evidence of psychological distress arising from the termination of the Plaintiff’s employment. This is a departure from the approach the BC Courts have generally taken in the past.


The Plaintiff, Mr. Ensign, was a 63-year-old salesman. He worked for Price’s Alarm Systems (the “Employer”) for 12.5 years, having never signed an employment agreement.  The Employer terminated Mr. Ensign’s employment by providing him with two months’ working notice.  After providing notice of termination of employment, the Employer made three offers to re-employ Mr. Ensign in different positions and under different terms.  He refused all of the offers, and sued the Employer for wrongful dismissal.

The Court determined that Mr. Ensign’s age, length of service, and poor employment prospects warranted a 12-month notice period. Moreover, Mr. Ensign was not required to accept re-employment with the Employer to mitigate his losses due to the inadequacy of the offers, Mr. Ensign’s low likelihood of success in the positions, and the erosion of trust between the two parties.  Having made these findings, the Court turned to the issue of aggravated damages.

Aggravated Damages

Mr. Ensign argued that the employer was not honest or forthright about various matters relevant to the termination of his employment, including the existence of a written contract of employment that limited his entitlement to notice of termination of employment, and the reason for the termination of his employment. The evidence of Mr. Ensign and his wife was that the manner in which the Employer terminated Mr. Ensign’s employment and treated him thereafter caused Mr. Ensign to suffer mental distress.  Further, Mr. Ensign said that he hesitated to visit a doctor because he was worried about the impact it could have on eligibility or increased premiums for life and mortgage insurance.  Consequently, there was no corroborating evidence from Mr. Ensign’s family doctor or any other physician.

The Court accepted the evidence of Mr. and Mrs. Ensign, noting that while their evidence was not corroborated by a physician or third parties, it was uncontested. Further, the Court found the Employer was “not truthful and candid” about the reason it terminated Mr. Ensign’s employment.

In the result, the Court accepted the Ensigns’ evidence, finding that the Employer had embarked on “aggressive and unmeritorious defense tactics” that strained Mr. Ensign’s marriage, impacted his ability to sleep, and caused him significant stress and emotional upset. Mr. Ensign was awarded aggravated damages in the amount of $25,000.


This is not the only recent decision in which the courts have accepted evidence of emotional distress from an employee and the employee’s spouse as the sole basis for an award of aggravated damages. For example, in Karmel v. Calgary Jewish Academy, 2015 ABQB 731, the Alberta Court of Queen’s Bench awarded $200,000 in aggravated damages to a wrongfully dismissed employee. In that case, the employer alleged just cause in the absence of any proof of misconduct against the dismissed employee.  In reaching its conclusion on aggravated damages, the Court relied on the testimony of the plaintiff and his wife about how he had suffered considerably before, during, and after his sudden dismissal, without presenting any medical evidence to the Court.

Ensign and Karmel suggest that a lower evidentiary standard for aggravated damages may be gaining acceptance in the courts.  Further, and on a practical level, these decisions demonstrate the risk of liability for failing to be honest and forthright in the manner of termination of an employee’s employment.  Employers would be well-advised to be conservative in assessing whether they have cause, assessing reasonable notice periods, carrying out the termination and avoiding bad faith and/or misrepresentation.

*This article was prepared with assistance from Sarah Blanco, articling student.

Keeping an Eye on Employees – Guidance from BC’s Office of the Information and Privacy Commissioner

Posted in Best Practices, Employer Obligations, Privacy
Ryley Mennie

As technology becomes more inexpensive, accessible and ubiquitous, we are seeing an increase in employers’ use of surveillance tools. While workplace monitoring has its benefits, such as providing safety coverage and greater transparency, it can come with risks, including the unlawful collection of employees’ personal information. Recognizing the enhanced role technology plays in the modern workplace, the Office of the Information and Privacy Commissioner for British Columbia (OIPC) recently published two guidance documents to help employers navigate their use of employee surveillance:

  1. Employee Privacy Rights”, and
  2. Using Overt Video Surveillance

As a starting point, the collection, use and disclosure of employee’s personal information accessed by employers is subject to BC’s Freedom of Information and Protection of Privacy Act (FIPPA) for public bodies, or the Personal Information Protection Act (PIPA) for private organizations. Under FIPPA, public body employers are not required to obtain consent before they collect personal information from employees if it is necessary for and directly related to a program or activity of the public body, but must notify employees whenever they collect personal information regarding employees “indirectly”, for the purposes of managing or terminating an employee relationship. Under PIPA, organizations are required to obtain employees’ consent before collecting personal information, unless the information is collected solely for reasonable purposes in connection with establishing, managing or terminating an employment relationship, in which case employers must notify employees that it is occurring and explain the purposes of collection.

Additionally, private organizations are required to develop and follow privacy practices to meet their PIPA obligations. OIPC recommends that the best way for an organization to show compliance with BC privacy law is to develop a privacy management program, which includes:

  • Adequate resources for the development, implementation and monitoring of privacy controls;
  • The presence of applicable policies and procedures;
  • Up-to-date documentation of risk assessment and mitigation strategies;
  • Adequate training delivered regularly;
  • Adequate information incident management processes;
  • Compliance monitoring; and
  • Regular reporting to the executive.

OIPC also recommends that employers consider the following when deploying specific types of employee monitoring:

  • Although video and audio surveillance can deter employees from engaging in criminal activity and other inappropriate behaviour, employers must show that collecting this information is necessary for managing or terminating an employee relationship before commencing such surveillance. OIPC recommends that organizations explore less privacy-intrusive methods, such as in-person employee supervision, and to weigh the privacy harm before resorting to video and audio surveillance. With respect to overt video surveillance, employers are advised to limit their collection of video surveillance, allow only authorized personnel to access this surveillance, securely store and destroy video surveillance and provide clear notification of use of cameras to individuals before they enter a place of employment that uses video monitoring.
  • For employers that use of software to guard their electronic infrastructure from internal and external threats like malware, social engineering and unauthorized employee access, and manage their IT networks to ensure that employees do not use excessive amounts of work time to check social media or do online shopping, beware of over-collection of employees’ personal information. Before collecting employees’ personal information through software or IT management, employers must notify employees and explain the purpose for which related information is collected.
  • GPS tracking and remote sensing can be installed on employees’ smartphones or in company vehicles and allow employers to keep an eye on their employees’ travel routes, hours of work and safety. However, continuous, real-time monitoring of employees, like the type we described in a previous blog post, could be excessive and invasive. Employers should consider employees’ knowledge and consent before using GPS tracking or remote sensing.

If you have any questions about your company’s legal authority to conduct employee monitoring, or privacy matters in your workplace generally, do not hesitate to contact one of the members of our Labour and Employment group.

*This article was prepared with assistance from Abigail Cheung, articling student.

The Supreme Court of Canada Interprets Workplace Discrimination Broadly

Posted in Employer Obligations, Human Rights
Donovan Plomp

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada considered the scope of section 13(1) of BC’s Human Rights Code, which concerns discrimination “regarding employment or any term or condition of employment.” The Supreme Court held that this provision is not only limited to protecting employees from discrimination perpetrated by their employer or superiors. Rather, applying a broad and liberal interpretation to the section, the Supreme Court held that section 13(1) of the Code prohibits discriminatory conduct that targets employees, regardless of the source, so long as the conduct has a sufficient nexus to the employment context.


The Complainant, Mr. Sheikhzadeh-Mashgoul, worked for an engineering firm hired by the municipality of Delta to oversee a road improvement project. The Complainant was an Iranian-born Muslim. Part of the Complainant’s role involved supervising work done by Clemas Contracting Ltd., the primary construction contractor. An employee of Clemas, Mr. Schrenk, repeatedly made racist and homophobic comments towards the Complainant. The Complainant filed a complaint with the BC Human Rights Tribunal alleging that against Mr. Schrenk, Clemas, and others discriminated against him relating to his employment on the basis of his religion, place of origin, and sexual orientation contrary to section 13 of the Code. This section provides that a person must not discriminate against another person “regarding employment” on the basis of several protected grounds, including religion, place of origin, and sexual orientation.

Mr. Schrenk applied to have the complaint dismissed on the basis that section 13(1) of the Code did not apply because the Complainant was not in an employment relationship with Mr. Schrenk or Clemas and, thus, the Tribunal did not have jurisdiction to consider the Complaint as against Mr. Schrenk.  

Ultimately, the question before the Supreme Court of Canada was: Is section 13(1) of the Code only limited to protecting employees from discriminatory harassment by their employer or superiors in the workplace?

Workplace Discrimination

The majority of the Supreme Court of Canada concluded that section 13(1) of the Code is not limited to protecting employees from discrimination that is perpetrated by their employers. Instead, it applies to all circumstances that have a sufficient nexus to the complainant’s employment context. To determine whether conduct falls under this prohibition, courts must engage in a contextual analysis that considers all relevant circumstances. The Court provided a non-exhaustive list of factors that may inform this analysis:

  1. whether the respondent was integral to the complainant’s workplace;
  2. whether the impugned conduct occurred in the complainant’s workplace; and
  3. whether the complainant’s work performance or work environment was negatively affected.

In this case, Mr. Schrenk’s discriminatory conduct had a sufficient nexus to the Complainant’s employment context. Mr. Schrenk was an “integral” and “unavoidable” part of the Complainant’s work environment, the comments occurred in the workplace, and the Complainant’s work environment was negatively affected due to the repeated affronts to his dignity.

In light of the decision in Schrenk, in order for discriminatory conduct to be captured by section 13(1) of the Code, the source of the conduct need not be an employer or a person in a position of authority to the complainant; rather, such conduct may be perpetrated by a coworker, a subordinate, a contractor, or an individual employed by another company. The implication of this ruling is significant for employers, as it represents an potentially significant expansion to the scope of employer liability for discriminatory conduct in the workplace.

* This blog was written with the assistance of Sarah Blanco, Articling Student.

Parliamentary Secretary Releases Final Report and Recommendations on Re-Establishment of B.C. Human Rights Commission

Posted in Human Rights
Christopher McHardy

As we reported in an earlier blog post, on August 4, 2017, Premier John Horgan announced the B.C. government’s intent to re-establish the B.C. Human Rights Commission (the “Commission”), which was disbanded approximately 15 years ago.

The announcement potentially signalled a departure from the direct-access model currently in place in B.C., which sees human rights complaints made directly to the B.C. Human Rights Tribunal (the “Tribunal”).  The direct-access model can be contrasted with the two-stage model in place in most other Canadian jurisdictions, which requires an investigation process with a human rights commission first, before being referred to a tribunal for adjudication.

As we noted in a subsequent blog post, the government launched a public engagement process on September 20, 2017, led by Parliamentary Secretary for Sport and Multiculturalism Ravi Kahlon, to gather stories, feedback, and information from the public to guide the re-establishment of the Commission.  The engagement process, which included nearly 100 public meetings and consideration of nearly 70 formal written submissions, ended on November 17, 2017.

The Report

On December 10, 2017, the Parliamentary Secretary issued his report and recommendations to the Attorney General of B.C. regarding the re-establishment of the Commission (the “Report”).  Entitled “A Human Rights Commission for the 21st Century: British Columbians Talk about Human Rights”, the Report sets out 25 recommendations on the creation, purpose, functions, powers, and priorities of the Commission, as well as recommendations for the Tribunal, the Human Rights Clinic, and the Attorney General.

The Parliamentary Secretary distils what he gathered from the public engagement process in the introduction to the Report:

The general consensus is that the new commission must be modern, efficient and effective. It should educate the public about human rights, promote equality, awareness and respect, and address systemic abuse. It should also complement not replace the current work of the BC Human Rights Tribunal and Human Rights Clinic. I have heard British Columbians say that B.C. should aspire to be the human rights leader by adopting innovative practices to ensure that individuals, no matter where they live, have equal access to justice and to the supports they need to turn human rights ideals into reality.

The Parliamentary Secretary identifies four key pillars upon which he believes a strong and independent human rights system in B.C. should be built:

  1. an independent human rights commission that promotes and protects human rights;
  2. a direct-access human rights tribunal with a dispute resolution mandate;
  3. a human rights clinic that provides specialized information, advocacy, and representation services focused on early resolution; and
  4. the Ministry of Attorney General with the responsibility and oversight of the B.C. Human Rights Code and the legislative framework necessary to protect persons from discrimination.

To highlight just five of the key recommendations pertaining to the Commission’s role, powers, and functions, the Report recommends that:

  1. the Commission should be independent of government by having the Human Rights Commissioner report directly to the legislature;
  2. the Commission’s primary function should be to educate British Columbians on human rights with the goal of fostering social change, including reducing discrimination and addressing systemic discrimination;
  3. the Commission should proactively promote and advocate for human rights, while the Tribunal should continue to serve as impartial adjudicator of human rights complaints;
  4. the Commission should hold governments to account through its research, investigation, policy development, and recommendation functions; and
  5. the Commission should have the power to call an inquiry on systemic instances of discrimination.

Further, the Report identifies several early priorities for the Commission:

  1. collaborate with and consult Indigenous groups to develop commission policies and practices that honour the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples;
  2. undertake a study on gender as an identity requirement in public documents, and make recommendations on its necessity or where it should be eliminated; and
  3. examine the issue of foreign credentials, particularly whether immigrants and other newcomers to British Columbia are being discriminated against.

The full report is available online.

Next Steps

The government has indicated that the Attorney General will consider the recommendations and put forward his legislative proposal to Cabinet in 2018.

If you have any questions about how the re-establishment of the Commission may affect your business, please do not hesitate to contact one of the members of our Labour and Employment group.

* This blog was written with the assistance of Connor Bildfell, Articling Student.