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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

British Columbia seeks stakeholder feedback on the new human rights commission

Posted in Human Rights, Litigation
Donovan Plomp

In August, I posted about Premier John Horgan’s announcement of the Government’s intent to re-establish a human rights commission. The intent of this new human rights commission will be to act proactively to address systemic discrimination and inequality in British Columbia.

The Government is now engaged in consultation with stakeholders and citizens, which will include online discussions with Parliamentary Secretary Ravi Kahlon, as well as in person meetings. If you would like to share your views on the role, functions and priorities of the new human rights commission, you can do so any time before November 17, 2017 at 4 pm. For more information on how to participate in the consultation process and to sign up to receive updates about this process, visit the B.C. Human Rights Commission webpage HERE.

Update on Ontario’s Employment and Labour Law Reform Bill

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

The Ontario Government is moving forward with its plan to implement wide-sweeping changes to the province’s employment and labour laws. The proposed legislation, Bill 148, the Fair Workplaces, Better Jobs Act, 2017, will enter its Second Reading in the Ontario legislature soon. Our colleagues in Toronto recently addressed the status of Bill 148 in their blog post “Ontario’s Employment and Labour Law Reform Bill Continues to Undergo Changes.”

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 Ontario Labour and Employment Law group.

British Columbia Supreme Court rules on reasonable notice when an employee is terminated before their first day of work

Posted in Employer Obligations, Litigation, Termination, Wrongful Dismissal
Monique Ronning

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the Court considered a case where the employer terminated the plaintiff’s employment before he commenced work. The Court rejected employer’s argument that the probation period clause applied to limit its liability to provide notice of termination of employment. Despite the contractual termination provisions in the employment agreement, the Court awarded the plaintiff common law reasonable notice. It is important that employers take note of the legal principles in this case if they plan to retract an offer of employment.

Background

On October 16, 2017, Colton Buchanan accepted an offer of employment from Introjunction and signed a contract of employment. Expecting to commence work on November 1, 2016, Mr. Buchanan quit his existing job. Unfortunately, after he quit, on October 29, 2016, Introjunction’s CEO informed Mr. Buchanan that the offer of employment was being retracted. Mr. Buchanan commenced an action for wrongful dismissal, seeking four months’ pay in lieu of notice of termination of his employment.

Probationary Period Clause

It is well-established that where an employee is terminated before they start work, they are entitled to reasonable notice or payment in lieu of notice (see, for example, DeGagne v. City of Williams Lake, 2015 BCSC 816). However, Introjunction argued that this principle did not apply because Mr. Buchanan’s employment contract contained a three-month probationary period, and it could rely on the probation provision in the circumstances. The Court disagreed, finding that: (i) the probation period expressly commenced on November 1st; and (ii) even if the probation provision did apply, it required the employer assess the suitability of the employee for the role during the probation period prior to terminating the employee’s employment. As Introjunction had terminated Mr. Buchanan’s employment before he started work, the probation period was not engaged and suitability could not have been a factor in the decision to terminate his employment.

Anticipatory Breach

The Court also found that Introjunction’s conduct demonstrated a clear intention to not honour the employment contract when it retracted the offer of employment before he commenced his employment (it is important to this finding that Mr. Buchanan had already accepted the offer). As a result, Introjunction’s “retraction” of the employment offer amounted to a repudiation of the contract and an anticipatory breach. Accordingly, having repudiated the contract, Introjunction could not rely on any provision in the contract, and it was thus subject to the common law obligation to provide reasonable notice of termination of the contract of employment.

Summary

Ultimately, the Court found that Introjunction wrongfully dismissed Mr. Buchanan from his employment and awarded him six weeks’ pay in lieu of notice.

This result is an important reminder to employers about the potential risks of rescinding an offer of employment after it is accepted, and that caution should be exercised when terminating an employment agreement in such circumstances. Even with no service, and employee may attract a reasonable notice award. In this case it was six weeks, but considering the courts analyze a number of factors in assessing reasonable notice, other cases could involve even longer notice awards. These risks can be mitigated by including carefully drafted contractual termination provisions. Please contact us if you would like further information.

“Waiving” Goodbye to Solicitor-Client Privilege

Posted in Best Practices, Investigations, Litigation
Christopher McHardy

There are a number of reasons an employer may retain a lawyer to conduct an investigation: investigative experience, to avoid a potential or actual conflict of interest, to avoid potential bias and the perception thereof, and to ensure that the investigation is not deficient, leaving the employer vulnerable to claims that result in reputational and other damages (consider one such cautionary tale in Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133).

Another significant reason employers retain lawyers to conduct workplace investigations is to maintain privilege over legal advice provided by the investigator undertaking the investigation. Of all the reasons to retain a lawyer, this reason may be the most challenging to manage.

As simple as it may be to ensure that privilege attaches to solicitor-client communications, it can be just as easy to waive the privilege and remove the protection. This was demonstrated by a recent British Columbia arbitration decision: Re: British Columbia Emergency Health Services and Ambulance Paramedics of British Columbia (CUPE Local 873) (2017), 276 LAC (4th).

Waiver of Privilege

British Columbia Emergency Health Services (“BCEHS”) retained a lawyer to conduct an investigation into complaints made by employees at an ambulance station.  Subsequently, CUPE Local 873 (the “Union”) filed a grievance about the employer’s investigation of the complaints, and applied for disclosure of the lawyer-investigator’s investigation report to BCEHS (the “Report”).

After assessing the evidence of both the lawyer-investigator and BCEHS, the arbitrator concluded that solicitor-client privilege attached to the Report, as well as the other documents sought by the Union. However, the arbitrator also found that BCEHS had waived privilege over extensive parts of the Report.

This waiver occurred when BCEHS offered the conclusions from the Report to the BC Labour Relations Board to assist it in coming to a conclusion in a separate, but related, matter. This disclosure, combined with further disclosures made by BCEHS at a meeting with Union representatives, amounted to a voluntary waiver of the specific information disclosed, as well as a significant portion of the Report.

The arbitrator’s decision serves as a valuable reminder of the law of waiver of privilege in this context. The BCEHS, the Union, and the arbitrator all relied on S. & K. Processors Ltd. v Campbell Avenues Herring Producers Ltd., [1983] 4 WWR 762 (BCSC) (at para. 6), where Justice McLachlin, as she then was, stated:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication.

The arbitrator concluded that it would be “unfair” for BCEHS to pick and choose parts of the Report to disclose and to retain privilege over the rest. As a result, the arbitrator held that privilege had been waived over a much greater extent of the Report than BCEHS had intended to disclose, and BCEHS was required to produce that portion to the Union.

Cautions

In light of the arbitrator’s decision, employers should be careful of the following:

  • If you choose to disclose portions of privileged information or documents, you may not have full control over the scope of disclosure. In the arbitration, BCEHS’s waiver of privilege over a carefully selected portion of the Report meant that it lost control over the privacy of a much greater extent of the Report.
  • If you waive privilege over documents in one proceeding, you risk waiving privilege over those documents in any related proceeding where you waived the privilege. BCEHS disclosed the conclusions of the Report in a parallel Labour Relations Board proceeding, which constituted waiver in the subsequent arbitration.
  • If you have concerns about solicitor-client privilege and/or use of the report in possible litigation, devise and adopt a strategy prior to initiating the investigation. You likely can structure the investigation, and any related reports, in a way that allows the disclosure of certain information without risking a waiver of solicitor-client privilege.
  • Before making any disclosures relating to interactions you have had with counsel, it is worth getting legal advice about the risk of waiving solicitor-client privilege. Even better, try to determine your needs and potential needs prior to the investigation, and structure it accordingly.

BC’s minimum wage will increase effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Legislative Changes, Legislative Requirements, Wage and Hours
Monique Ronning

On August 15, 2017, the provincial government announced that British Columbia’s minimum wage will increase from $10.85 to $11.35 per hour effective September 15, 2017. This is the Ministry of Labour’s first step in a long-term plan to raise the minimum wage to $15 per hour.

Wage increases will also take effect for employees in the following categories:

  • live-in home support worker;
  • live-in camp leader;
  • resident caretaker;
  • farm workers; and
  • liquor servers.

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 (B.C. Reg. 396/95).

British Columbia announces re-establishment of the Human Rights Commission

Posted in Human Rights, Legislative Changes
Donovan Plomp

On August 4, 2017, Premier John Horgan announced the Government’s intent to re-establish a human rights commission. The British Columbia Human Rights Commission was dismantled about 15 years ago. Currently British Columbia has a direct access model allowing complaints to be brought directly to the British Columbia Human Rights Tribunal.  In jurisdictions with commissions (in other provinces and federally) complaints must first proceed through an investigation process with a human rights commission.

According to the News Release issued by the Office of the Premier, the intent of the new human rights commission will be to act proactively to address systemic discrimination and inequality in British Columbia. The Government will commence a consultation process this fall, and legislation is expected to follow next year. If you would like to participate in the online or in-person consultation process, watch out for announcements on our blog or on the Government’s News webpage.

The Government of Canada launches a new Global Skills Strategy

Posted in Human Capital, Immigration, Recruiting, Temporary Foreign Worker Program
Christopher McHardy

On June 12, 2017, the Government of Canada launched its new Global Skills Strategy, with the intent of providing employers with a faster and more predictable process for attracting top talent and new skills to Canada, stimulating economic growth, and creating more middle-class jobs for Canadians. In particular, the Global Skills Strategy aims to support high-growth Canadian companies that need to access global talent. The government also hopes the Strategy will result in global companies (i) making large investments in Canada, (ii) relocating to Canada, (iii) establishing new production in Canada, and/or (iv) expanding existing production in Canada, all with the aim of creating new jobs for Canadians.

Effective June 12, 2017, employers and highly-skilled workers can access the Global Skills Strategy in the following ways:

  1. Work Permit Exemptions for Highly Skilled Short-Term Workers: Two new areas of short-term work have been exempt from the requirement to obtain work permits. Highly-skilled workers who need to come to Canada for a very short-term assignment and researchers taking part in short-duration research projects conducted in Canada who qualify for this exemption will not require a work permit. In particular:
    • The exemption for highly-skilled workers applies to all National Occupation Classification (NOC) 0 and NOC A workers (managers and professionals). Eligible NOC 0 and NOC A workers will be allowed one 15-day work permit-exempt stay in Canada every six months, or one 30-day work permit-exempt stay every 12 months; and
    • Researchers coming to Canada will be permitted one 120-day stay every 12 months without requiring a work permit when working on a research project at a publicly-funded degree-granting institution or affiliated research institution.
  2. New Global Talent Stream under the Temporary Foreign Worker Program (TFWP): The new global talent stream allows: (i) faster processing of Labour Market Impact Assessments (LMIAs) to eligible employers; and (ii) recruitment of highly specialized and skilled global talent. The processing times will be 10 business days (to be met 80% of the time) and, while there is no minimum recruitment requirement, the employer is encouraged to recruit Canadian citizens and permanent residents first. The Global Talent Stream has two categories:
    • Category A: This category is for high-growth firms that can demonstrate a need to hire unique and specialized talent, and have been referred to the Global Talent Stream by a Designated Partner (one of 14 agencies, associations and organizations designated by the federal government). Unique and specialized talent is defined as having: (i) advanced knowledge of the industry; (ii) an advanced degree in an area of specialization of interest to the employer; and/or (iii) a minimum of five years of experience in the field of specialized experience; and (iv) a highly paid position with a salary of usually $80,000 or more. The employer must, in their Labour Market Benefit Plan (“LMBP”), commit to creating jobs, either directly or indirectly, for Canadian citizens and/or permanent residents, and must commit to at least two other complementary benefits that are not the same as the mandatory benefits for that employer.
    • Category B: This category is for employers seeking to hire highly skilled foreign workers to fill occupations found on the Global Talent Occupations List. The employer must comply with program requirements and uphold specific conditions as set out in Immigration and Refugee Protection Act and Regulations. As part of the LMBP, the employer must commit to increasing skills and training investments for Canadian citizens and permanent residents, as well as at least two other complementary benefits.
  3. Dedicated Service Channel: A new Dedicated Service Channel (“DSC”) will be available to: (i) employers who are making a significant investment in Canada; and (ii) universities that support publically-funded research chairs coming to Canada. The DSC will give those employers access to an account manager, who will assess the employer’s needs, answer questions, and provide guidance.
  4. Faster Work Permit Processing: High-skilled workers coming to Canada on a temporary basis will be able to have their work permit applications (and temporary resident visas, where necessary) processed within two-weeks. Open work permits for spouses and study permits for dependants will also be processed in two weeks when applicable.

If the Global Skills Strategy is rolled out as intended by the federal government, then it will help employers across Canada access temporary, high-skilled and global talent, and scale up or expand their workforce’s knowledge of specialized skills so that they can be more innovative and build their expertise. Please contact us if you would like to know more, and whether your business can benefit from the programs under the Global Skills Strategy.

The Canadian Human Rights Act gets an update with the addition of “gender identity or expression”

Posted in Discrimination, Employer Obligations, Human Rights, Legislative Changes
Monique Ronning

On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received Royal Assent. As a result, “gender identity” and “gender expression” are now prohibited grounds of discrimination under the Canadian Human Rights Act (the “Act”). In particular, section 3(1) of the Act now reads:

Prohibited grounds of discrimination

3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

This amendment brings the Act in line with the human rights legislation in a majority of the provinces and territories in Canada. Federally-regulated employers, and provincially-regulated employers in each of the provinces and territories identified below, are prohibited from discriminating against an employee and/or prospective employee on the basis of their gender identity and/or gender expression:

Prohibited Ground

Jurisdiction
 

AB

BC MB NB NL NS NU NT ON PE QC SK

YT

Gender Identity

Gender Expression

 

As with other grounds of discrimination, the Act does not include a definition of gender identity or gender expression. As stated by the Department of Justice, this is done “in order to ensure that the law would be as inclusive as possible… [G]rounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.” However, the Canadian Human Rights Commission will be publishing guidance in due course regarding these terms.

In 2014, the Ontario Human Rights Commission (OHRC) published a “Policy on preventing discrimination because of gender identity and gender expression”, which sets out the OHRC’s interpretation of the terms gender identity, gender expression, transgender, discrimination, and harassment. This Policy, while not legally binding, may serve as a starting point for federally-regulated employers when considering their duties under the Act.

Please contact us if you would like to know more about your obligations as an employer under Canadian human rights legislation, or how the amendments to the Act may impact your business.

 

 

Supreme Court of Canada upholds dismissal of employee for failing to disclose cocaine use in violation of “No Free Accident Rule”

Posted in Employee Obligations, Employer Obligations, Human Rights, Termination
Christopher McHardy

In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada recently reaffirmed the two-part test for discrimination in the workplace.  Centered on the termination of an employee’s employment for drug use in violation of a drug and alcohol policy, this decision reinforces employers’ ability to implement and rely upon drug and alcohol policies aimed at promoting a safe workplace.

Facts

Elk Valley Coal Corporation implemented an Alcohol, Illegal Drugs & Medication Policy (“Policy”) aimed at promoting safety at its mine. The Policy contained a “No Free Accident Rule” – employees who disclosed any dependence or addiction issues would be offered rehabilitation and treatment without fear of reprisal; however, employees who failed to disclose dependency or addiction issues, and tested positive for a substance following an incident would have their employment terminated.

Ian Stewart was employed as a load driver. Stewart signed a form acknowledging that he understood and would comply with the Policy.  He used cocaine on his days off, but did not disclose his substance use to Elk Valley.  Stewart was involved in an incident while driving the loader, and post-accident testing produced a positive result for cocaine.  Elk Valley terminated Stewart’s employment pursuant to the Policy.  Stewart’s union representative filed a complaint with the Alberta Human Rights Tribunal, arguing that the termination of Stewart’s employment was the result of discrimination based on addiction.

Decision

The Human Rights Tribunal of Alberta found that Elk Valley’s decision to terminate Stewart’s employment was not influenced by addiction; rather, the termination resulted because Stewart failed to disclose his substance use in accordance with the Policy. Consequently, Stewart failed to establish prima facie discrimination, which is the first stage of the test for discrimination.  In particular, at the first stage, the complainant must demonstrate:

  1. a disability protected under the relevant human rights legislation;
  2. adverse treatment with regard to the claimant’s employment or a term of that employment; and
  3. the disability was a factor in the adverse treatment.

A majority of the Supreme Court of Canada upheld the Tribunal’s conclusion that Stewart did not establish prima facie discrimination.  In doing so, the majority rejected the argument that Stewart’s addiction prevented  him from complying with the Policy, and was, therefore, an “indirect” factor in his termination.  While acknowledging that addiction can sometimes deprive a person of the capacity to comply with workplace policies, the majority accepted the Tribunal’s finding that Stewart had the capacity to decide when to use drugs, and to disclose his use.  The fact that Stewart may have been in denial about his addiction did not alter this conclusion.  As stated by the majority:

[39]      It cannot be assumed that Mr. Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence: Health Employers Assn. of British Columbia v. B.C.N.U., 2006 BCCA 57, 54 B.C.L.R. (4th) 113, at para. 41.

The majority also took this case as an opportunity to further confirm the first stage of the test for discrimination in the workplace. Specifically, the majority confirmed that a finding of stereotypical or arbitrary decision-making is not necessary to find prima facie discrimination.  Further, the majority rejected calls to insert “significant” or “material” before “a factor” under the third element of the prima facie discrimination test.

Take Away for Employers

The Stewart decision affirms employers’ ability to implement policies to prevent alcohol and drug use in high-risk workplaces.  Notably, in appropriate circumstances and with the right language, an employer can adopt a stringent “No Free Accident Rule” or “zero-tolerance” policy for drugs and alcohol as a mechanism to promote workplace safety.  However, such policies will not override an employer’s duties under applicable human rights legislation.  As occurred in Stewart, providing employees with a copy of the policy, educating employees about the policy, and obtaining their acknowledgment of the policy is good practice, both from a safety and enforcement perspective.

Federal government restores former certification and decertification processes for unionization in federal workplaces

Posted in Labour Relations, Legislative Changes, Unions
Donovan Plomp

On June 22, 2017, Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, came into effect. This legislation changes certification and decertification rules for federally regulated workplaces. For more information, please visit the blog post “Federal Government Restores Former Certification and Decertification Processes for Unionization in Federal Workplaces” prepared by our colleagues in Toronto.