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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

The Office of the Information and Privacy Commissioner reminds BC’s private businesses that use of video surveillance is a last resort

Posted in Employer Obligations, Privacy
Donovan Plomp

In February 2017, at the 18th annual Privacy and Security Conference, Acting Commissioner Drew McArthur (“Commissioner”) commented on the first-ever audit of a private sector business conducted by the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”). He stated that OIPC “used this audit as an important opportunity for public education, and a reminder to private businesses that they should only use video surveillance as a last resort after exploring other less privacy-invasive options.” The Commissioner’s speech is available here.

OIPC initiated the audit of the lower mainland medical clinic (“Clinic”) after receiving a complaint about the Clinic’s collection of personal information through video and audio surveillance. The Clinic used surveillance cameras on a 24/7 basis in its lobby, hallways, back exists, and fitness room to collect personal images and audio of patients, employees, contractors, and others.

The Commissioner concluded that the Clinic’s use of video and audio surveillance was excessive in the circumstances. The Clinic could not provide sufficient evidence of a safety or security problem or other significant issues to justify the use of surveillance, and did not make any attempt to use less-intrusive means to achieve to achieve the Clinics goals of security, liability protection and client protection in the fitness room, and monitoring staff. Further, the Clinic did not obtain the appropriate consents to collect the personal information, did not have the appropriate mechanisms and processes in place to store, secure and dispose of the personal information collected, and did not have an effective Privacy Management Program in place.

The Privacy Audit and Compliance Report covers:

  • the methodology used by OIPC to conduct the investigation, which included an on-site inspection of the clinic, a review of the Clinic’s policies, practices, and training, and interviews with key Clinic staff (page 8);
  • the information covered by OIPC in an interview of the Clinic’s owner (page 9);
  • the applicable legislation (pages 9-10);
  • the Commissioner’s findings (pages 12-33); and
  • 12 recommended actions for the Clinic to take that, when implemented, will help ensure that the Clinic is in compliance with its obligations under BC’s Personal Information Protection Act for protecting personal information (pages 35-37).

Of particular note to employers using video surveillance or considering using such surveillance is the Commissioner’s guidance regarding the collection of personal information by video surveillance at pages 10-11. The full report is available here.

New WorkSafeBC regulations for joint occupational health and safety committees effective April 3, 2017

Posted in Employer Obligations, Legislative Changes, Occupational Health and Safety, WorkSafeBC
Monique Ronning

In British Columbia, a workplace with 20 or more workers must have a joint occupational health and safety committee (“Committee”), and a workplace with 10-19 workers must have a worker health and safety representative. Effective April 3, 2017, amendments to the Occupational Health and Safety Regulation will require the following:

  1. Employers must ensure that a written evaluation is conducted annually to measure the effectiveness of the Committee. Section 3.26(b) of the Regulation sets out who can conduct the evaluation, and section 3.26(3) of the Regulation sets out what information must be covered by the evaluation. WorkSafeBC reports that it will launch an online evaluation tool that employers and Committees may use to comply with this requirement.
  2. Mandatory minimum training and education for new Committee members and worker health and safety representatives. In particular, within six months of being selected, Committee members must undergo at least eight hours of training, and worker representatives must undergo at least four hours of training. Sections 3.27(4) and (5) of the Regulation sets out the topics that must be covered in training. Sections 3.27(6) and (7) of the Regulation provide for an exception to the training requirement for Committee members or worker representatives who: served in such roles in the two years prior to being selected for their current post; and received at least the minimum training now required under the Regulation.

The amendments also clarify the meaning of “participation” in section 174 of the Workers Compensation Act by providing three additional examples of what participation by worker and employer representatives in an employer incident investigation includes.

Visit WorkSafeBC’s webpage regarding Joint Health and Safety Committee Related Occupational Health and Safety Regulation (OHSR) Changes for a full copy of the approved amendments and explanatory notes for each amendment.

BC Supreme Court clarifies law regarding employment probation

Posted in Employer Obligations, Employment Standards, Termination
Laura DeVries

The British Columbia Supreme Court recently addressed key issues regarding probationary periods in employment contracts.

Background

In Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, the contract of employment executed by the plaintiff, Mr. Ly, contained the following probation clause:  “Employees are required to serve an initial probationary period of six (6) months for new positions” (the “Probation Clause“).

Mr. Ly was dismissed from his position after two months and challenged the enforceability of the Probation Clause. He argued that such a brief reference to probation was not sufficient to rebut the common law presumption of reasonable notice owed to dismissed employees.  The Court rejected this argument, concluding that the meaning of the term “probation” is well understood and noting that Mr. Ly had not questioned or attempted to negotiate the Probation Clause (as he had done, for example, with respect to a different clause in the agreement).

Mr. Ly further argued that the six-month Probation Clause was unenforceable because its six-month duration fell afoul of section 63(1) of the Employment Standards Act (the “ESA”), which requires employers to provide employees who have served at least three months of employment with a minimum of one week’s notice or pay in lieu.

Decision

The Court acknowledged that the law regarding whether employers can require probationary periods longer than three months was somewhat unclear. In addressing this question, it affirmed that the common law presumption of reasonable notice may be rebutted by a contractually agreed-upon probation period, so that an employer may dismiss an employee without reasonable notice during such period.  It also affirmed that the minimum notice periods set out in the ESA cannot be contracted out of or circumvented.  Thus, after an employee passes the three-month mark, he is entitled to the minimum one week’s notice provided in the ESA, even if the parties agreed to a six-month probation period.

The Court also summarized certain key principles regarding probation periods, which it defined as follows:

A probationary term of employment is best understood as part of a contract of employment where: a) the employee is held to the requirement that for a specific period of time that employee must demonstrate certain suitability requirements set by the employer; and b) the employee may be dismissed without reasonable notice (subject to statutory minimums) if he or she does not meet the suitability requirements.  If the employee meets the suitability requirements then, after that period of probationary assessment, the employee’s contract continues as a contract of employment wherein the requirements of just cause and reasonable notice apply. [emphasis added]

Although an employer is not required to give reasons for dismissing a probationary employee, the Court will review the employer’s conduct in assessing the employee, considering factors such as: whether the employee was made aware of the criteria by which he would be assessed; whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and whether the employer acted fairly and with reasonable diligence in assessing suitability.

In Mr. Ly’s case, the Court concluded that the employer had not sufficiently communicated to Mr. Ly the standards by which he would be assessed, had not given him a reasonable opportunity to demonstrate his suitability, and had not met the required standard of good faith in assessing him. Consequently, the Court found that the employer wrongfully dismissed Mr. Ly. The Court awarded Mr. Ly pay in lieu of three months’ reasonable notice because his contract did not specify a specific notice period.

Key Takeaways

When contracting for probation periods greater than three-months, it is important to keep the following in mind. Under the ESA, employees are entitled to notice of termination of employment upon completing three months of continuous employment, even if the probation period extends beyond three months. If the contract does not contain an express termination provision equal to or greater than the ESA minimum, then the employee will be entitled to reasonable notice at common law, which can be a costly severance package for such a short-service employee (as in Mr. Ly’s case).

Denial of coverage for medical marijuana under employee benefit plan found to be discriminatory

Posted in Benefits, Compensation, Pensions, Employer Obligations, Human Rights
Monique Ronning

In 2010, Mr. Skinner was involved in a motor vehicle accident while working, and subsequently developed a physical and mental disability. After exhausting conventional drug options to treat his symptoms, Mr. Skinner’s physician prescribed medical marijuana. The medication provided him with some relief from his chronic pain and improved functionality. Mr. Skinner requested coverage for the medical marijuana under the Canadian Elevator Industry Welfare Trust Plan (“Plan”), a private benefit plan designed to provide health and related benefits to union employees in the elevator industry.

The Plan’s Trustees denied the request on the basis that: (i) medical marijuana did not have a drug identification number (“DIN”) because it was not approved by Health Canada, and (ii) Mr. Skinner’s medical expenses ought to be covered by a provincial medicare plan because his disabilities resulted from a compensable workplace accident. Mr. Skinner filed a complaint under the Nova Scotia Human Rights Act alleging discrimination in the provision of services on account of physical and mental disability.

In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, the Nova Scotia Human Rights Commission Board found the Trustees’ justifications for denying Mr. Skinner’s request for coverage to be “wholly inadequate.” The Plan provided coverage for “reasonable and customary charges incurred for medically necessary drugs and medicines” obtained legally by prescription, and did not require a DIN as a condition of coverage.

The Board determined the Trustees’ decision to deny Mr. Skinner’s request for coverage was discriminatory under the Act. The evidence demonstrated that medical marijuana was medically necessary in Mr. Skinner’s case, and the terms of the Plan did not exclude medical marijuana coverage. The Trustees’ denial of Mr. Skinner’s request was inconsistent with the purposes of the Plan, and had the adverse effect of depriving Mr. Skinner of comparable coverage provided to other beneficiaries. Further, the Trustees provided no evidence of undue hardship. The Board noted that the Trustees provided no evidence that granting an employee’s request for coverage of medical marijuana on a case-by-case basis (or any other basis) would cause an increase in premiums or threaten the financial viability of the Plan. As a result, the Board ordered (as an interim measure) that the Trustees immediately commence providing coverage for medical marijuana to the Complainant.

Given the exponential increase in legal marijuana prescriptions in Canada, and the media attention garnered by decisions like Skinner, it is likely that both employers and benefit plan administrators will see a growing number of requests for coverage for prescription marijuana. While the Skinner decision does not mean that medical marijuana must be covered under every private benefit plan, it does demonstrate the necessity of considering human rights obligations when deciding how to respond to a request for such coverage. As stated by the Board in Skinner:

[1]        Employee benefit plans are not required to cover the sun, moon, and the stars. However, where an employee with a disability requests coverage that is consistent with the purpose of a plan and comparable to coverage provided to other beneficiaries, more is required from a plan administrator than simply an assertion that its hands are tied by its policy and forms. In the absence of evidence that extending coverage would unreasonably alter the plan premiums or risk its financial sustainability, non-coverage of a medically-necessary drug may amount to discrimination…

BC revamps Provincial Nominee Program with enactment of Provincial Immigration Programs Act and Regulation

Posted in Human Capital, Immigration, Legislative Changes
Christopher McHardy

The Provincial Immigration Programs Act, S.B.C. 2015, c. 37 (“PIPA“) and the Provincial Immigration Programs Regulation (“Regulation“) came into effect on February 1, 2017.

PIPA strengthens the administration of the Province’s immigration programs and designates decision-making authority for the British Columbia Provincial Nominee Program (“PNP“) to the director, provincial immigration programs.

The Regulation governs the delivery of the PNP, which is British Columbia’s only direct economic immigration tool. Specifically, the Regulation:

  1. grants authority to collect PNP fees,
  2. sets out the amount of PNP fees,
  3. allows for inspections to be conducted to monitor compliance with program requirements, and
  4. implements a process for reviewing refused applications. To read the provincial government’s overview of the changes to the PNP as a result of PIPA and its Regulation, click here.

Prior to PIPA, the PNP was not governed by a specific legislation; instead, it was a program policy of the provincial government, and the only publicly accessible information about the program (subject to occasional changes) was on the PNP website. The new PIPA and its Regulation brings greater certainty and transparency to the BC PNP process. The PNP has been, and continues to be, one of the better programs for the selection and nomination of foreign workers and international graduates with the skills, education and/or experience required for high-demand occupations and entrepreneurial ventures. The PNP is based on a point system, with the provincial government issuing Invitations To Apply for provincial nomination to the highest-ranking registrants following periodic draws from the pool of provincial candidates. At the time of writing, there have been three draws from the pool of candidates (February 3, 17 and 23, 2017).

To read the provincial government’s overview of the changes to the PNP as a result of PIPA and its Regulations, click here.

 

B.C. announces a 50 cent increase to the minimum wage effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Wage and Hours
Donovan Plomp

Earlier this month, we posted a list of minimum wage increases across Canada and noted Premier Christy Clark’s May 2016 announcement that the provincial government was committed to raising the minimum wage for employees in British Columbia to $11.25 per hour effective September 15, 2017 (click here).  In line with this commitment, B.C.’s Jobs, Tourism and Skills Training Ministry issued a news release yesterday announcing that, effective September 15, 2017, the minimum wage will rise by 50 cents to $11.35 an hour and the minimum wage for liquor servers will increase to $10.10 an hour. Read the full news release here.

Reasonable offer prevents litigious complainant from proceeding at BC Human Rights Tribunal

Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations, Litigation
Ryley Mennie

A recent decision of the BC Human Rights Tribunal (“Tribunal”) serves as a useful reminder of the utility of a reasonable settlement offer, which can result in the Tribunal putting an end to complaint proceedings without a hearing. In Sebastian v. Vancouver Coastal Health and others (No. 3), 2017 BCHRT 1, the Vancouver Coastal Health Authority (“VCH”) made a reasonable settlement offer and succeeded in having a human rights complaint filed by a litigious employee dismissed by the Tribunal under section 27(1)(d)(ii) of the Human Rights Code, thereby avoiding a 15-day hearing.

Background

Joseph Sebastian is an employee of VCH and member of the Health Sciences Union. Mr. Sebastian filed a human rights complaint alleging that VCH discriminated against him when it allegedly failed to accommodate his disability. Mr. Sebastian had also filed numerous grievances against VCH which included the same allegations. The Tribunal deferred Mr. Sebastian’s human rights complaint for a period of time pending completion of the grievance proceedings.

At the hearing of the grievances, VCH and the Union agreed to resolve the grievances, and the arbitrator set out the terms of settlement in a “Consent Award”. Among other things, VCH and the Union agreed to a specific return to work plan and lost wages for Mr. Sebastian, though the parties were not able to resolve the human rights complaint within the grievance proceedings.

With the grievances resolved, VCH made a formal “with prejudice” offer to Mr. Sebastian in an attempt to settle his human rights complaint. VCH’s settlement offer included paying a further $15,000 as damages to Mr. Sebastian for any injury to dignity that he may have suffered and providing its recognition of how difficult and trying the accommodation experience had been for him, without admitting any liability. When Mr. Sebastian refused the offer, VCH applied under section 27(1)(d)(ii) of the Code to have his complaint dismissed.

Decision

Under section 27(1)(d)(ii) of the Code, the Tribunal can exercise its discretion to dismiss a complaint where it does not further the purposes of the Code due to the presence of a settlement offer. To be successful, the settlement offer must:

  1. Be “with prejudice” so that it can be considered by the Tribunal;
  2. Fully address the allegations and available remedies, both monetary and non-monetary;
  3. Adequately remedy the alleged violation and be consistent with the types of orders the Tribunal might make if the complaint was successful;
  4. (If applicable) provide a monetary award within the reasonable range that the Tribunal might award if the complaint were found to be justified; and
  5. Remain open for the complainant’s acceptance even if rejected and even if the Tribunal were to dismiss the application to dismiss.

The Tribunal reviewed the evidence and concluded that:

  • the complaint addressed the same subject matters as the grievances, which were resolved, and “the Tribunal is governed by principles that prevent re-litigation of decided issues”;
  • despite stating his opposition to the terms of the Consent Award, Mr. Sebastian: i) actively participated in the grievance proceedings and was aware that the Union intended to settle the accommodation disputes by way of the Consent Award, ii) enjoyed the financial “fruits” of the Consent Award, and iii) did not take any action against the Union for representing him in the Consent Award negotiations;
  • the Consent Award was intended to address all of Mr. Sebastian’s claims relating to the accommodation of his disability and provided for clear financial compensation for lost wages; and
  • Mr. Sebastian was unlikely to receive an injury to dignity award greater than $15,000.

In light of the above, the Tribunal dismissed the complaint as it would not further the purposes of the Code to permit it to proceed to a hearing. The Tribunal considered that Mr. Sebastian seemed content to take what he could from the Consent Award, and then sought to improve on his position by pursuing a complaint based on substantively the same issues. In dismissing Mr. Sebastian’s complaint, the Tribunal highlighted that “there is a strong public policy interest in encouraging parties to resolve their disputes on a voluntary, consensual basis” (at para. 169).

Conclusion

Given the cost of proceeding to a hearing of a complaint, particularly when faced with a particularly litigious complainant, this decision serves as a good reminder to respondents that, in appropriate circumstances, a reasonable offer to settle can provide a useful and effective tool to have a complaint dismissed. It is also a good decision for unionized employers who, in good faith, resolve workplace grievances with the full participation and consent of the union, ensuring that employees cannot take the benefits of that consensual resolution and then shop around for another forum to try and improve their position, based on the same dispute.

The Alberta Court of Appeal offers further guidance on the principle of good faith in employment

Posted in Benefits, Compensation, Pensions, Employer Obligations, Litigation, Termination
Christopher McHardy

Click here to view our colleagues’ posts titled “Incentive Plans in Alberta can still Limit Entitlements to ‘Actively Employed’ Employees” and “The Alberta Court of Appeal clarifies the organizing principle of good faith with style.” These posts address the recent Alberta Court of Appeal’s decision in Styles v. AIMC, and will be of interest to employers in British Columbia as an example of how the courts may apply (or should not apply, as in this case) the common law principle of good faith in contractual performance in a wrongful dismissal case. This case also serves as a reminder that clear and unambiguous language in a contract may permit employers to limit incentive entitlements to only those employees who are actively employed on the day the incentive vests.

For more information on the common law principle of good faith in contractual performance and the general duty of honesty between contracting parties, click here to read our colleagues’ article on the Supreme Court of Canada’s decision in Bhasin v. Hrynew (2014).

Minimum Wage Increases in 2017

Posted in Employment Standards, Wage and Hours
Laura DeVries

Minimum wage increase are on the horizon for employees across Canada.

  • Alberta: On October 1, 2016, the general minimum wage increased to $12.20 per hour, liquor servers were included in the general minimum wage category, and salespeople received a wage increase to $486/week. Effective October 1, 2017, the general minimum wage will increase to $13.60 per hour, and the rate for salespeople will increase to $542/week.
  • New Brunswick: Effective April 1, 2017, the minimum wage will increase from $10.65 to $11.00 per hour.
  • Quebec: Effective May 1, 2017, the general minimum wage will increase from $10.75 to $11.25 per hour, and employees who receive tips and gratuities will see their minimum wage increase from $9.20 to $9.45 per hour.

In May 2016, Premier Christy Clark announced that the provincial government was committed to raising the minimum wage for employees in British Columbia to $11.25 per hour effective September 15, 2017. With the provincial election coming up in May, this wage increase is not a certainty. We will keep you informed.

Canada is one step closer to legalizing cannabis and workplace safety is top of mind

Posted in Legislative Changes, Occupational Health and Safety
Monique Ronning

On November 30, 2016, the Task Force on Cannabis Legalization and Regulation presented its Final Report to the federal government. The Report sets out recommendations to the federal government “on the design of a new system to legalize, strictly regulate and restrict access to cannabis.” This brings the federal government one step closer to legalizing cannabis in Canada.

The full report, titled A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation, is now available for download.  Noteworthy to employers are the Task Force’s comments on minimizing the harms of use of cannabis in the workplace and emphasis on the “urgent need for research reliability determine when individuals are impaired.”

As it relates to workplace safety, the Task Force made three recommendations to the federal government (PDF, page 29):

  • Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies.
  • Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment.
  • Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.

We will continue to monitor the federal government’s actions and proposed legislation, and report on how employers may be affected.