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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

B.C. changes course to join other jurisdictions in expressly recognizing gender identity and expression under human rights legislation

Posted in Discrimination, Human Rights, Legislative Changes
Christopher McHardy

British Columbia’s Attorney General and Minister of Justice, Suzanne Anton, announced on Wednesday, July 20, 2016, that the government will introduce a bill next week to amend British Columbia’s Human Rights Code [Code] to include “gender identity and gender expression” as protected grounds. This announcement reflects a change in the government’s policy, which for years maintained that it was not necessary to amend the Code because the language was already sufficient to protect the rights of transgendered people.

LGBTQ2 advocates had argued previously for the changes for a number of reasons, including that, practically speaking, without express protection, many transgendered people did not know that they were protected from discrimination under the Code and have supported the recent announcement as helping to broaden the understanding of gender identify by incorporating gender identity issues into the education system when children are introduced to the Code at school.

The proposed legislative amendments will bring B.C. into step with other jurisdictions across Canada. The federal government, for example, recently proposed to add gender identity or expression to the Canadian Human Rights Act. Seven other provinces and one territory currently have language protecting the rights of transgendered people in their human rights legislation: Alberta, Newfoundland & Labrador, Nova Scotia, Ontario, Prince Edward Island, Manitoba, Northwest Territories, and Saskatchewan.

Although it appears the B.C. Human Rights Tribunal had no difficulty recognizing and upholding the rights of transgendered people under the Code as it is currently drafted, it may be expected that the proposed legislative amendments will contribute to providing transgendered persons with a greater appreciation of their rights and, hopefully, increase clarity for employers in making sense of complex issues in the workplace.

We will be sure to keep you updated on the proposed developments.

 

Dismissing an Employee in the Federal Sector? You Will Need More Than a Severance Package

Posted in Discrimination
Laura DeVries

The Supreme Court of Canada ruled today in Wilson v. Atomic Energy of Canada Ltd. that federally regulated employers must provide justification for dismissing a non-unionized employee, confirming that that federally regulated, non-unionized employees cannot be dismissed without cause or reasons.  This means that a federal sector employer cannot simply terminate the employment of an employee by providing reasonable notice, whether measured by the statutory minimums provided under the Canada Labour Code (the “Code“) or the common law.  Without proper justification, an employee may be entitled to a host of remedies under the Code including, but not limited to, reinstatement of employment with back pay, which can be much costlier and more problematic than pay in lieu of reasonable notice. Unfortunately, this ruling sets the federal sector apart from most Canadian provinces, including British Columbia.  Our colleagues in Ontario have posted their thoughts on the matter, including the background facts to the decision and implications for federally regulated employers.

British Columbia Court of Appeal Restores Record-high Human Rights Tribunal Damages for Injury to Dignity

Posted in Human Rights
Laura DeVriesJocelyn Plant

We previously reported on the B.C. Human Rights Tribunal’s record-high $75,000 award for injury to dignity, and the subsequent decision of the B.C. Supreme Court that the award was patently unreasonable in the circumstances.

The B.C. Court of Appeal in University of British Columbia v. Kelly has now restored the Tribunal’s original award for injury to dignity, emphasizing that it is for the Tribunal to consider the evidence in each individual case.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. He experienced significant difficulties while attempting to complete UBC’s residency program. While he actively sought medical treatment, and UBC attempted to accommodate him, he continued to perform below expectations. Ultimately, UBC decided that Dr. Kelly was unsuitable for the program and discharged him with two months’ severance pay.

The Tribunal found UBC’s actions to be discriminatory, and awarded Dr. Kelly $75,000 in damages for injury to dignity, more than twice the previous high water mark for this type of damages. While the B.C. Supreme Court upheld the Tribunal’s finding of discrimination, it found that the Tribunal’s award for injury to dignity was patently unreasonable in the circumstances.

The Court of Appeal dismissed UBC’s appeal on the finding of discrimination, but allowed Dr. Kelly’s cross-appeal on the issue of the dignity award.  Dr. Kelly argued that the B.C. Supreme Court should have deferred to the Tribunal’s decision, which was based on principle and supported by the evidence. The Court of Appeal agreed, and restored the Tribunal’s original $75,000 dignity award.

The Court of Appeal stated that a court reviewing a dignity award should not treat such a review like an appeal of damages in the personal injury context.  Ranges of awards established in previous cases “play a more diminished role” in the Tribunal’s determination of an award for injury to dignity, and it is not patently unreasonable for the Tribunal to exceed the ranges established by prior cases.

The Court of Appeal also considered whether the Tribunal’s award was based on the evidence. It noted that the Tribunal found that Dr. Kelly had suffered acutely due to the discriminatory termination. Such  factual findings, the Court of Appeal held, are properly made by the Tribunal, and it is not appropriate for a reviewing judge to re-weigh the evidence.

The Court of Appeal also found that the B.C. Supreme Court had made two errors in concluding that Dr. Kelly was no more impacted than any other person terminated in a discriminatory manner. First, the Court had erred by making an unwarranted intrusion into the decision-making realm of the Tribunal.  Second, the Court’s reasoning was flawed because it overlooked the fact that the termination effectively ended Dr. Kelly’s prospects of working as a practicing physician. The Tribunal was aware of prior awards and decided that Dr. Kelly’s situation was unique.  Unless the reviewing court identified a factor that the Tribunal had overlooked, which suggested that Dr. Kelly’s situation was not unique, it was inappropriate to find the Tribunal’s award patently unreasonable.

This decision clarifies that award ranges crafted from prior cases are neither determinative nor binding in the context of damage to dignity awards. The Tribunal has the discretion to order a high damage to dignity award if it decides that such an award is warranted by the individual’s unique circumstances.

Have your say: federal employers may soon have to accommodate “millennials”

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Rights, Legislative Changes
Ryley MennieJocelyn Plant

Employment and Social Development Canada recently released a Discussion Paper on Flexible Work Arrangements, signaling potential changes to the Canada Labour Code (“Code”). The Discussion Paper follows on the federal government’s November 2015 mandate to the Minister of Employment, Workforce Development and Labour to amend the Code in order to allow workers in federally regulated sectors to formally request flexible work arrangements from their employers. Employers would then be obliged to respond to such requests, and could only deny requests on “reasonable business grounds”. Changes to the Code would affect some 880,000 employees working for over 11,450 employers in federally regulated industries. A second aspect of the Minister’s mandate is to consult with the provinces in order to ensure these changes are implemented within provincial labour standards legislation.

Flexible work arrangements involve a variety of alternatives to the traditional working week, including flexibility of work schedules, number of hours, work locations, telecommuting and leaves from employment. Some of these measures are already in place in various provincial employment legislation; for example, British Columbia’s Employment Standards Act provides employers and employees with the option to utilize split shifts and average an employee’s hours of work over a number of weeks, and employers already have to consider flexibility and accommodation in matters involving human rights considerations.

According to the Discussion Paper, the proposed legislative changes are designed to benefit both employees and employers by promoting work-life balance, reduced workplace stress and health-related symptoms, reduced absenteeism, overtime and turnover costs, and increased recruitment, job satisfaction and morale, productivity and retention.  The proposed changes are stated in the Discussion Paper to be, in part, a response to “millennials” and their different expectations from the workplace, and accord with employers’ existing obligations to accommodate employees based on the grounds protected under the Canadian Human Rights Act (and parallel provincial legislation).

The Discussion Paper’s goal is to generate stakeholder involvement in the policy development process in several key areas, including:

  • what types of flexible work arrangements are the most effective;
  • what process should be used by employees and employers to make and respond to flexible work arrangement requests;
  • what recourse should be available if a request is inadequately considered;
  • how flexible work arrangements should be implemented; and
  • what compliance and enforcement tools can best ensure that flexible work arrangements are effectively implemented.

It is unclear at this point what the ultimate legislative changes to the Code may be to implement a right to request flexible work arrangements. Employers have the opportunity to weigh in and provide feedback as the government considers its options until June 30. Please refer to the Discussion Paper for details on how to submit your comments online, via email or mail.

As employers must balance their legal obligations to accommodate employees for religious, family, medical and other reasons, and the demands of “millennials”, who have different expectations of the work-life balance, implementing a legislative process to consider flexible work alternatives for all employees, while preserving the employer’s right to reject these requests for valid business purposes, provides an interesting opportunity for our employment standards to develop alongside the evolving nature of the workforce.

If this is something you think may affect your workplace – negatively or positively – now is your chance to provide feedback. We’ll be sure to keep you updated on developments.

 

An expanded Canada Pension Plan

Posted in Employee Obligations, Employer Obligations, Legislative Changes, Pensions
Donovan Plomp

Much has been said about the recent agreement in principle between 8 of the 10 provincial finance ministers and the federal finance minister to expand the Canada Pension Plan. Our colleagues in Ontario have posted their thoughts on the matter, which includes a useful summary on the agreement, links to further details, some implications for employers – both generally and specifically in Ontario – and steps that employers should take to anticipate the expected changes.

Family status quo for British Columbia

Posted in Accommodation, Best Practices, Discrimination, Employee Obligations, Employer Obligations, Family Status, Human Rights, Litigation
Christopher McHardy

Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (Campbell River).  Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the application of Campbell River and whether its test for family status discrimination has been displaced in British Columbia.

Kenworthy v Brewers’ Distributor (No. 2) involved an application to dismiss two complaints involving allegations of discrimination on the basis of sex and family status and retaliation in the workplace.  The respondent employer, Brewers’ Distributor Ltd. (BDL), is a beer warehousing and distributing business.  It employed Noelle Kenworthy as a casual warehouse employee with a variable and inconsistent schedule.  When Ms. Kenworthy became pregnant, BDL accommodated her by changing her work duties and schedule.  After Ms. Kenworthy’s child was born, BDL entered into a series of accommodation agreements with Ms. Kenworthy and made concerted efforts to accommodate her childcare scheduling needs.  However, the agreements also provided that Ms. Kenworthy would be responsible for making any personal arrangements necessary to enable her to meet her employment obligations.  BDL decided not to renew the accommodation agreement due to Ms. Kenworthy’s failure to fulfil these obligations, giving rise (in part) to Ms. Kenworthy’s human rights complaints. Ms. Kenworthy also alleged in the complaints that she was sexually harassed at the workplace, treated in a discriminatory fashion due to her sex and family status, and retaliated against by BDL when it refused to enter further accommodation arrangements.

With respect to the ground of family status, Ms. Kenworthy argued that the Campbell River test was no longer applicable and that the Tribunal should be guided by the overall test for discrimination from Moore v. British Columbia (Education). The adjudicator disagreed, and relied on the Campbell River test.  The Tribunal did not go so far as accepting BDL’s position that the Campbell River test be strictly applied, concluding that the test is not an “exhaustive one”.  In the circumstances, there was no need to revisit the Campbell River analysis. The Tribunal found that none of Ms. Kenworthy’s complaints had a reasonable prospect of success and granted BDL’s application to dismiss.

What this means for BC

Emphasizing that there is scope for flexibility in the test for family status discrimination under Campbell River, the Kenworthy decision demonstrates that the Tribunal will require particular circumstances to justify revisiting and potentially displacing the Campbell River test. For now, it appears Campbell River is sufficient for the Tribunal’s purposes to address complaints of discrimination in family status in British ColumbiaHowever, as we posted previously, employers would be well-advised to consider the Johnstone test when examining employees’ accommodation requests on the basis of family status.  This will insulate against complaints, even if the resulting accommodation goes further than the law in British Columbia requires.  Of course, this is a matter of risk management – there is no reason employers cannot apply the Campbell River test.

Aside from the appropriate test for family status discrimination, Kenworthy also offers a good example of an employer meeting its duty to accommodate family status by properly engaging the accommodation process and pursuing reasonable accommodation options.  As the Tribunal put it, the accommodation process is one in which: “all those involved are required to work together to find a solution that adequately balances competing interests”.  Having failed or refused to do her part in the accommodation process, the complainant was unable to defeat the employer’s application to dismiss.

Although the Tribunal has confirmed that the Campbell River test remains applicable in British Columbia, given the general desire for uniformity in human rights protections across Canadian jurisdictions and the broader tests being utilized elsewhere, it does raise the question of whether, or perhaps when, the Tribunal will revisit the Campbell River analysis.  We will keep you updated on developments.

 

BC government enables smaller employers to give employees pension plans.

Posted in Benefits, Compensation, Pensions, Legislative Changes, Pensions
Donovan Plomp

Pension plans can be a very helpful retention mechanism for good employees (and, it must be noted, bad ones too), and many larger employers offer them to their employees as part of their overall compensation package. However, the cost and complexity of pension plans have also meant that they may not be considered by most smaller employers. Recent legislative enactments have attempted to address this.

In 2012, the federal government enacted the Pooled Registered Pension Plans Act, creating Pooled Registered Pension Plans (PRPPs) at the federal level, in an effort to make large-scale defined contributions pension plans available to employees of small companies and to self-employed individuals. PRPPs are designed to be easy for small-scale employers to joinwith the  bulk of administration being handled by professional third-party financial constitutions, while also providing participants with all of the investment savings and opportunities of large pooled funds. On May 2, 2016, the government of British Columbia brought sections of Bill-9 into force, allowing provincially-regulated BC employers to offer their employees the ability to participate in PRPPs.

As British Columbia employers in smaller enterprises may wish to offer their employees the option of participating in a PRPP, now is a good time to learn how they work and whether they are right for your workplace. Take a look at the CRA’s PRPP info page to learn more. Importantly, while PRPPs offload a number of administrative functions to third-parties, the decision as to which third party to select and the ongoing monitoring of that provider would remain the employer’s responsibility.

 

Don’t make promises you can’t keep (even inadvertent ones) – a good lesson for all BC employers

Posted in Benefits, Compensation, Pensions, Best Practices, Employer Obligations
Ryley Mennie

The recent decision of the BC Supreme Court in Feldstein v. 364 Northern Development Corporation provides a cautionary tale for well-meaning employers seeking to provide compensation and benefits package details to candidates during the interview process.

Cary Feldstein had been diagnosed with Cystic Fibrosis at the age of nine, obtained a Bachelor of Arts in Computer Science and worked in his chosen field of software engineering and was the major breadwinner for his family. In 2012, his existing employment was terminated and he sought out employment with other firms, including 364 Northern Development Corporation (“364”).  The court found that the British Columbia job market at the time for software engineers was “hot” and, given his medical condition, Mr. Feldstein prioritized employee benefits when seeking out alternate employment, including in particular, LTD benefits.

364 liked Mr. Feldstein and, during the course of numerous interviews, conversations and meetings with 364’s management, Mr. Feldstein and 364 discussed the compensation 364 was offering, including employee benefits. The court found that, at a certain point during this process, 364 told Mr. Feldstein that three consecutive months of employment would satisfy any need for Mr. Feldstein to establish “proof of good health” for the purposes of LTD benefits. This statement ended up being untrue.  After considering the information he had gathered from 364, Mr. Feldstein accepted employment and began working for 364 on April 30, 2012.

By May 2013, Mr. Feldstein’s health deteriorated significantly and he took a number of medical leaves. By October 2013, he wrote to 364’s owner to enquire about LTD benefits, as it was becoming clear that he was not eligible for the full LTD package as a result of his prior condition. 364 made, in the court’s words, “strenuous efforts” to have the LTD insurer provide full LTD benefits, without success. In the end, Mr. Feldstein only received the “Non-Evidence Maximum” of $1,000/month in LTD benefits. During his LTD period, Mr. Feldstein underwent a double lung transplant.

At trial, the question before the judge was whether 364 had negligently misrepresented the details of LTD benefit eligibility to Mr. Feldstein during the interview process, and if so, the extent of Mr. Feldstein’s damages. The court sided with Mr. Feldstein, finding in part that , given the importance of LTD benefits to his life and circumstances, he would have a more reliable memory of what transpired during the interview process. In sum, the court found that 364 owed Mr. Feldstein a duty of care to ensure it made accurate statements to him during the interview process, the statement regarding the three month “proof of good health” for LTD benefits purposes was inaccurate, untrue and misleading, breaching the standard of care required of 364, and Mr. Feldstein reasonably relied on the statement and suffered damages as a result.

The court awarded Mr. Feldstein 40 months of LTD benefits at the level Mr. Feldstein thought he would get when he accepted employment, less money he received in CPP income, for a total of $83,336.80. The court also awarded Mr. Feldstein $10,000 in aggravated damages for the “extraordinarily distressing” circumstances he suffered after he had gone to great lengths to protect himself against loss from a long term disability.

Lessons for employers?

  1. As a rule and best practice, refer to the plan provisions when explaining employee benefits. Benefits plans can be complicated and certain terms may need to be amended over time. Rather than risk providing inaccurate information (inadvertently, as it appears to have been in this case), provide a candidate with general information, subject to the plan terms, and provide the candidate with the actual plan document for his or her review.
  2. If a desirable candidate pushes for information in time-sensitive circumstances (as occurred here), ensure that you take the time to review the plan details and are comfortable with the terms. Check with appropriate staff and make necessary phone calls and enquiries before making any statements.  Consider putting the candidate directly in touch with your benefits provider.
  3. Most importantly, ensure your employment contract includes an “entire agreement” clause, which stipulates that the written agreement supersedes and replaces any and all previous discussions, conversations and representations regarding the terms and conditions of employment. Had there been such a clause in this case, 364 may have been able to avoid the nearly $100,000 in liability it was ordered to pay

We understand this decision is currently under appeal. We’ll be sure to keep you posted on the outcome.

 

Do Your Employees Require Time Off To Vote?

Posted in Elections, Employer Obligations, Legislative Requirements
Donovan Plomp

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

 

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

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

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

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

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

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

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

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

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

Posted in Discrimination, Human Rights
Laura DeVries

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

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

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

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

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

The Court agreed with UBC, stating:

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

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

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

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

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