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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

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.

Gender expression and gender identity now express grounds of discrimination under Code

Posted in Discrimination, Human Rights, Legislative Changes, Legislative Requirements
Ryley MennieJack Ruttle

Following our previous post on the British Columbia government’s bill to amend the Human Rights Code [Code] earlier this year, the bill recently received royal assent and “gender identity and gender expression” are now expressly included in the Code  as protected grounds.

Though the meaning and application of these new protected grounds will need to be fleshed out by Tribunal and court decisions, the Tribunal’s website now provides the following descriptions:

Gender Expression: Gender expression is how a person presents their gender. This can include behaviour and appearance, including dress, hair, make-up, body language and voice. This can also include name and pronoun, such as he, she or they. How a person presents their gender may not necessarily reflect their gender identity.

Gender Identity: Gender identity is a person’s sense of themselves as male, female, both, in between or neither. It includes people who identify as transgender. Gender identity may be different or the same as the sex a person is assigned at birth.

As we noted previously, these amendments reflect a change in the BC government’s policy. For years, the government maintained that it was not necessary to amend the Code because the protected ground of sex was already sufficient to protect the rights of transgendered people. While it remains to be seen whether, and if so, how the new grounds may change the manner in which the Tribunal approaches complaints involving transgender rights, they no doubt provide further substance to a complex and evolving area that must be considered by employers.

We will be sure to keep you updated on developments.

Doing Business in Canada 2016: Read the latest updates to our popular guide

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Capital, Human Rights

McT_DBiC_Cover_3D_SEPT2016

McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition reflects legislative changes including:

  • Changes to the Competition Act and Investment Act Canada;
  • and an updated Mergers and Acquisitions chapter including new rules on takeover bids in Canada.

General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.

Download the updated guide

Have your say – potential changes to Workers’ Compensation Act regulations

Posted in Legislative Changes, Legislative Requirements, Occupational Health and Safety, Workers Compensation, WorkSafeBC
Ryley Mennie

WorkSafeBC recently announced public consultation and hearings into proposed changes to regulations under the Workers’ Compensation Act, including environmental tobacco smoke, e-cigarette vapour and joint health and safety committees. Details of the proposed changes, together with explanatory notes, can be found at the foregoing link.

WorkSafeBC is accepting public feedback until October 7, 2016, which can be provided online, by email, fax or by mail (details in the link provided).

A number of public hearings will also be held throughout British Columbia, commencing September 21, 2016.

Consider taking this opportunity to review the potential impacts of the proposed changes on your workplace and to provide your input.

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.