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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

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.

Facts

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.

Takeaways

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.

Background

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.

Background

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.

Conclusion

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.

Background

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.

Ontario to see major changes to workplace laws in 2018

Posted in Employment Standards, Labour Relations, Legislative Changes, Legislative Requirements
Monique Ronning

On Wednesday, November 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017. which now awaits Royal Assent. The passage of Bill 148 means that Ontario will see major changes to the Ontario Employment Standards Act, 2000 and Ontario Labour Relations Act, 1995 in the new year. These changes include moving to a $14 minimum wage (followed by a subsequent increase to $15 on January 1, 2019), increased vacation entitlements, increased entitlement to parental leave, paid emergency leave, and equal pay for part-time, contract and temporary employees.

Our colleagues in Toronto recently addressed the significant changes in store for Ontario employers in their blog post BILL 148 PASSES (but not before a few last-minute changes were made).

If you have any questions about Bill 148 and how it will impact your workplace, please do not hesitate to contact us, Tim Lawson, Matthew Demeo or any lawyer in our Labour and Employment Law group.

Settling the Score: ABCA Finds Settlement Agreement Precluded Human Rights Complaint from Proceeding

Posted in Human Rights
Donovan Plomp

In Buterman v. St. Albert Roman Catholic Separate School District No. 734, 2017 ABCA 196, the Alberta Court of Appeal confirmed that the province’s human rights tribunal lacked jurisdiction to hear a human rights complaint due to the existence of a settlement agreement.

Facts

Jan Buterman was removed from the roster of substitute teachers maintained by the Board of Trustees of the Greater St. Albert Roman Catholic Separate School Board District No. 734 (the “Board”) because he was in the process of transitioning from female to male. Mr. Buterman filed a complaint with the Alberta Human Rights Commission against the Board alleging discrimination on the basis of gender and mental and physical disability (namely, gender identity disorder) contrary to the Alberta Human Rights Act.

In October 2009, the Board offered to settle the complaint for $78,000, in exchange for (1) a withdrawal of the complaint, (2) a covenant not to advance any further human rights complaints or legal process in relation to the complaint, and (3) a standard release containing a confidentiality clause (the “2009 Offer”). Mr. Buterman initially rejected that offer. However, in September 2010, Mr. Buterman (through his lawyer) indicated he was willing to accept the 2009 Offer. He requested that the Board confirm whether that offer remained open for acceptance, after which the parties could “discuss the details of the settlement.” The Board promptly advised that the 2009 Offer remained on the table and confirmed Mr. Buterman’s acceptance.

Later, following an exchange of correspondence over the wording of the release and confidentiality agreement, Mr. Buterman (through his lawyer) returned unsigned the draft settlement documents and the settlement money. Mr. Buterman subsequently made a statement to the media that he had rejected the Board’s settlement offer because of the confidentiality clause contained in the release.

Alberta Human Rights Tribunal (“Tribunal”) Decisions

The Board applied to the Alberta Human Rights Tribunal (the “Tribunal”) seeking a preliminary determination that the Tribunal had no jurisdiction to hear the complaint as a result of the settlement agreement. The Tribunal determined that the parties had entered into an executory contract of settlement (i.e., one not yet fully completed). It held that the parties had settled on September 8, 2010 and that they did not, through their subsequent correspondence, repudiate the agreement; they were merely working out the wording of the documents. The Tribunal added that it was up to the parties to “take the steps that will determine the way forward, whether that is to execute the settlement or otherwise”.

Following this decision, the Board sent Mr. Buterman a cheque for $78,000 and draft settlement documents. The Tribunal then issued a second decision in which it found it no longer had jurisdiction over the complaint because the settlement agreement had been fully executed (i.e., completed) and, as a result, Mr. Buterman had relinquished his complaint.

Alberta Court of Appeal (“Court”) Decision

Following an unsuccessful appeal to the Court of Queen’s Bench, Mr. Buterman appealed to the Alberta Court of Appeal. The Court upheld the Tribunal’s finding that the parties had reached a settlement agreement on September 8, 2010. It rejected Mr. Buterman’s argument that the agreement was invalid because there was uncertainty as to its “essential terms”. The Court upheld the Tribunal’s finding that the execution of the release and confidentiality agreement was an essential term, but the form of the document was not.

The Court also rejected Mr. Buterman’s submission that the Board had repudiated the settlement agreement in its post-agreement correspondence. It noted that the Tribunal had found the Board was receptive to amendments and that the parties were engaged in an exchange about the final wording of the documents. The Court added that in order for an agreement to be repudiated, the non-repudiating party must communicate acceptance of that repudiation. Here, although Mr. Buterman had communicated with the media, at no time did he communicate his acceptance of any alleged repudiation to the Board. In the result, the Court confirmed that, due to the settlement agreement, the Tribunal had no jurisdiction to hear the complaint.

Key Takeaways

A key takeaway from Buterman is that the formation of a settlement agreement must be distinguished from the completion of that agreement. Although the parties had not worked out the precise language to be included in the settlement documents at the time the employer had confirmed the acceptance of the earlier offer it had made, that did not preclude a finding that a settlement agreement had been formed at that moment. The “essential terms” of the agreement had been settled, and the parties’ subsequent communications over what the Tribunal took to be relatively inconsequential matters of wording did not change that fact. Accordingly, the mere fact that the parties continue to negotiate the terms of a bargain does not necessarily mean a legally binding agreement has not already been reached.

Despite the result in Buterman, employers must recognize that any attempt to settle a complaint or claim brought by an employee – or anyone else, for that matter – must be approached carefully. It is critical to ensure the “essential terms” of the agreement are nailed down; otherwise, the counterparty may attack the agreement on the basis that its terms are too uncertain to constitute a binding contract. Furthermore, post-agreement negotiations over the terms of the settlement – or “tinkering” with the agreement – may invite an argument that new terms have been added to the contract that were never the subject of agreement.

If you have any questions about settlement agreements or related issues affecting your business, 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.

Federal Government Introduces New Amendments to the Canada Labour Code to Address Workplace Violence and Harassment

Posted in Employer Obligations, Investigations, Legislative Changes
Monique Ronning

The Federal Government recently introduced legislation providing for significant changes in how federally-regulated workplaces address workplace violence and harassment. For more information about Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1., and the duties this proposed legislation may impose upon employers if it becomes law, please read the blog post prepared by our colleagues in Toronto (available HERE).