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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Government of Ontario releases the Changing Workplaces Review Final Report

Posted in Employer Obligations, Employment Standards, Labour Relations
Monique Ronning
On May 22, 2017, the Ontario Government released the much-anticipated Changing Workplaces Review Final Report.

The Report recommends wide-sweeping changes to Ontario’s employment and labour laws. The Ontario Government is expected to act on many of the recommendations within weeks, and the reverberations will be felt across Canada.

For more information, please visit the blog post “Government of Ontario releases the Changing Workplaces Review Final Report” prepared by our colleagues in Toronto.

The Canadian Human Rights Commission publishes Impaired at Work: Guide to Accommodating Substance Dependence

Posted in Accommodation, Best Practices, Employer Obligations, Human Rights
Christopher McHardy

The national epidemic of opioid abuse and overdoses is almost a daily feature in news media. Meanwhile, recent figures indicate that prescriptions for painkillers continue to increase in Canada.  It is in this context that the Canadian Human Rights Commission recently released a new guide: Impaired at Work: Guide to Accommodating Substance Dependence.  As stated at the outset of the guide, its purpose is “to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation.”

The definition of disability under the Canadian Human Rights Act includes “previous or existing dependence on alcohol or drugs.”  It follows that federally-regulated employers have a duty to accommodate an employee with substance dependence.  The Impaired at Work guide sets out a five step process to fulfilling this duty:

  1. Recognize the signs: Employers may observe negative changes in an employee’s behaviour, performance, and attendance at work. While these changes are not necessarily indicative of substance dependence, in some cases, the observed behaviour could be the consequence of substance dependence.
  2. Talk about it: Observed negative changes in an employee’s behaviour, performance, and attendance at work may trigger the employer’s duty to inquire. This duty requires the employer to speak with the employee about what may be causing the negative changes.
  3. Gather and consider relevant medical information: Medical information is likely required in order for the employer to determine if the employee has a disability and what, if any, accommodation may be required and available in the circumstances.
  4. Accommodate: If an employee is diagnosed with substance dependence, then the employer’s duty to accommodate is triggered. The Commission’s guide provides suggestions for the development and implementation of an accommodation plan, and emphasizes that accommodation is assessed based on the particular circumstances of the individual employee.
  5. Follow-up and adjust: The last step is to follow-up on a regular basis with the employee, and to adjust the accommodation plan where necessary. The Canadian Human Rights Commission states that adjustment may be necessary in situations where the employee relapses, which is “often a characteristic of substance dependence.” The employer’s duty of accommodation for substance dependence will only come to an end where an employer reaches the point of undue hardship, which is assessed on the facts of the particular case.

The Impaired at Work guide concludes with a synopsis of key considerations regarding drug and alcohol testing in the workplace. For employees in safety-sensitive positions, the possibility of conducting this test depends on the nature and context of the employment. However, the Canadian Human Rights Commission emphasizes that testing an employee “who does not occupy a safety-sensitive position is rarely permissible.”

While this guide is drafted for the benefit of federally-regulated employers, the five step process to fulfilling the duty to accommodate is applicable to any British Columbia employers faced with an employee with a substance addiction. Addiction to alcohol or drugs is recognized by the BC Human Rights Tribunal as a disability under the BC Human Rights Code, and is a prohibited ground of discrimination regarding employment.  However, provincially-regulated employers should be aware that the jurisdictions across Canada differ in the permissible scope of drug and alcohol testing in the workplace, and in the procedural and substantive requirements an employer must take to satisfy their duty to accommodate up to the point of undue hardship.

As a cautionary note, the Impaired at Work guide does not have the force of law – it is merely a guide.  Also, it is written from a human rights perspective, without consideration of the potential employee, business, and operational issues that may exist.  The guide does not, and cannot, take into account all of the circumstances that an employer should consider in dealing with a specific situation.  While the guide provides a useful overview in general terms, caution should be used when applying the guide to a specific situation without obtaining appropriate legal advice.  The duty to accommodate, especially where addiction is involved, often creates the most challenging and risk-fraught employment situations, and employers must be able to show that they have both correctly followed the accommodation process and arrived at the correct result, all while balancing practical and operational considerations and parameters.

Please contact us if you require assistance in navigating your duty to accommodate.

Office of the Information and Privacy Commissioner highlights transparency and trust during Privacy Awareness Week

Posted in Best Practices, Employer Obligations, Privacy
Monique Ronning

If you follow the Office of the Information and Privacy Commissioner for British Columbia on twitter (@BCInfoPrivacy), then you will have noticed a series of posts about Privacy Awareness Week. Privacy Awareness Week is an initiative commenced in 2006 by the Asia Pacific Privacy Authorities forum, of which British Columbia is a member, and is held annually to promote the awareness of privacy issues.

This week (May 15 to May 21), the Office of the Information and Privacy Commissioner is undertaking various activities for individuals and businesses in celebration of Privacy Awareness Week, including:

  • Releasing the results of a recent Privacy Awareness Survey;
  • Sharing privacy tips; and
  • Hosting a one-hour Twitter chat with Assistant Commissioner Jay Fedorak on Thursday, May 18 at 2:00 pm (PST).

For more information, click HERE.

These heels weren’t made for workin’… BC bans mandatory high heeled shoes in workplace

Posted in Discrimination, Employer Obligations, Human Rights, Legislative Changes, Legislative Requirements, Occupational Health and Safety, WorkSafeBC
Ryley Mennie

On April 7, 2017, the BC Government issued a press release on having fulfilled its promise to ban mandatory high heels from BC workplaces. The change was made by amending section 8.22 of the Occupational Health and Safety Regulations (“OHS Regulation”), and is explained by WorkSafeBC’s recently adopted OHS Guideline G8.22Footwear regarding section 8.22 of the OHS Regulation.

The Guideline provides that “footwear must both allow the workers to perform their work safely and provide the protection required for the particular environment.” Employers must conduct an assessment of the risks present in their particular workplace and duties of the employee to determine what constitutes appropriate footwear in the circumstances. Factors that will be considered in making this assessment includethe risk of slipping, tripping, uneven terrain, ankle protection and foot support, and potential for musculoskeletal injury (s. 8.22(2), OHS Regulation). WorkSafe BC acknowledges that these factors are more prevalent when walking in high heels greater than 1.5 inches.

OHS Guideline G8.22 Footwear provides the following example:

… hospitality workers (e.g., servers, hosts, bus-people, and bartenders in bars, clubs, restaurants, or other hospitality venues) walk on different surfaces, including slippery surfaces and stairs, often while carrying food and drinks. With consideration to the factors referred to in section 8.22(2)(a), (b), (c), (e), and (f) [as noted above], high heels would not be appropriate footwear. A dress code requiring hospitality workers to wear high heels while serving, bussing, or hosting would violate section 8.22(2.1).

The amendment is not a total ban on high heels. Employers may permit employees who want to wear heels to continue to do so if, upon consideration of the factors under section 8.22(2) of the OHS Regulation, the employer determines that wearing heels does not pose a risk to an employee’s safety in the workplace.

While the amendment to the OHS Regulation is specifically directed at workplace safety, there is also a positive human rights consideration addressed by the changes given that men are typically not subjected to the same uncomfortable footwear expectation (or other gendered dress expectations) in many workplaces, particularly those in the hospitality sector. On that note, the Ontario Human Rights Commission recently published a policy position on sexualized and gender-specific dress codes, which addresses the gendered, and potentially discriminatory, nature of certain workplace dress code requirements, including high heels.

Although high-heeled shoes are but one element of dress expectations of women in certain BC workplaces, the safety and human rights concerns that the recent amendment helps ameliorate is a positive and welcome development in ensuring safe, fair (and comfortable) access to BC workplaces for all.

Doing Business in Canada 2017: Read the latest updates to our popular guide

Posted in Employer Obligations, Employment Standards, Human Capital, Human Rights
Monique Ronning

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 includes sections on: Immigration (at page 129); Employment (at page 151); and Dispute Resolution (at page 171).

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.

Can an employment agreement executed after the employee starts work be enforced? The Ontario Court of Appeal says yes.

Posted in Best Practices, Employer Obligations, Termination
Donovan Plomp

Julia Wood received an offer for employment from Fred Deeley Imports (“Deeley”) on April 17, 2007. Wood accepted the offer during the phone call, and later received an email from Deeley which outlined the terms of her employment. The parties could not recall the date of the email, but it was received by Wood prior to commencing employment with Deeley on April 23, 2007. Then, on April 24, 2007, Wood met with the human resources representative and signed various employment documents, including an employment agreement. Eight years later, Deeley terminated Wood’s employment. Wood commenced a wrongful dismissal action, alleging (among other things) that her entire employment agreement was unenforceable because she signed it after she commenced working for Deeley.

The trial judge considered the exchange between the parties leading up to the execution of the contract, and inferred that the terms of Wood’s employment were contained in the email, which she received before she started working. Given that there had been no substantial change in the terms before Wood signed the contract, the trial judge found that the employment agreement was enforceable.

Wood appealed, arguing that in order for the employment agreement, executed the day after she started working for Deeley, to be enforceable, she needed to receive fresh consideration from Deeley.

In Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, the Ontario Court of Appeal confirmed that a “written employment agreement is not unenforceable merely because the employee signs it after starting to work” (at para. 12). The Court found the trial judge’s inference to be reasonable, noting that Deeley did not claim she reviewed the terms of her employment for the first time on April 24, 2007, or that the contract contained any new material terms. The Court acknowledged that the contract was likely signed the day after Deeley started work as “a matter of administrative convenience.” In these circumstances, fresh consideration was not necessary.

Comment:

This decision is a welcome one for employers across Canada. It is highly advisable that employers provide employees with a copy of their employment agreement for review in advance of commencing employment. It is also highly advisable that employers have the employee execute and return the contract prior to commencing employment.  If, however, the contract is executed shortly after the employee commences work and provided it is substantially the same as the version sent to the employee prior to their start date, this decision makes it clear that it will likely be enforceable.  Thus, although it is not advisable to wait until after employment has commenced to have an employee sign a contract, not all is lost if such circumstances arise.

BC will see big changes to small claims on June 1, 2017

Posted in Legislative Changes, Litigation
Monique Ronning

On March 20, 2017, the Province of British Columbia announced significant changes to the jurisdiction of the Civil Resolution Tribunal (CRT) and Provincial Court to address small claims court matters.

Since June 2016, British Columbians have turned to the CRT to resolve strata property disputes online. Effective June 1, 2017, it will be mandatory for most disputes up to $5,000 to use the CRT. This change will capture almost all employment-related disputes up to $5,000, which would otherwise have proceeded in small claims court. The CRT’s online process is intended to be efficient, accessible, and inexpensive, and can be accessed from a smartphone, tablet, or computer. CRT decisions are rendered by tribunal members, and leave for appeal can be filed with the BC Supreme Court.

In addition, the Provincial Court’s small claims jurisdiction will increase from $25,000 to $35,000. The Provincial Court in Vancouver and Richmond will also run one-hour simplified trials for cases with a monetary value of $5,001 to $10,000, which will be heard by Justice of the Peace Adjudicators. We note that once these change takes effect, a plaintiff who filed a Notice of Claim in Provincial Court prior to June 1, 2017, is permitted to amend their Notice of Claim to increase the amount claimed to up to $35,000, not including interest and expenses.

For more information on these changes, visit the Provincial Court’s information page or the CRT webpage.

Owner/Operator Labour Market Impact Assessment and its importance for Permanent Residence applications in 2017

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

Any Canadian employer wishing to employ a temporary foreign worker (“TFW”) in Canada must first obtain authorization from the government, which is typically obtained by proving that the hiring of a TFW will not negatively impact the Canadian labour market.  In most cases, the Canadian employer must apply to Employment and Social Development Canada, also known as Service Canada, for approval of the Labour Market Impact Assessment (“LMIA”), previously called a Labour Market Opinion or LMO.  A LMIA is a very detailed application process that is subject to a high level of review, and must be completed without error.

Most LMIA applications require the employer to advertise the role to Canadian workers. However, certain LMIA applications are exempt from the advertising requirements.  One example is the Owner/Operator LMIA.  This category is for foreign nationals who wish to establish or purchase a business in Canada, and want to work in that business in a high-skilled position, often with the aim of immigrating permanently.  To qualify as an owner/operator, a foreign national must:

  • demonstrate a level of controlling interest in the business, i.e. a sole or majority shareholder;
  • demonstrate that his or her temporary entry to Canada will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and/or permanent residents; and
  • not be in a position to be dismissed, i.e. is not in an employment position where her or she is answerable to someone more senior.

For Owner/Operator LMIAs, no advertising or recruitment is required. The key requirement is that the foreign national owns a business in Canada in which he or she owns a controlling interest of more than 50%.  Other requirements include:

  1. a business plan that shows how the owner/operator will fund the business and create or maintain employment, and contains at least a rudimentary financial plan and timeline of events;
  2. active management of the business (i.e. it cannot be a passive investment) in a position that accords with the foreign national’s qualifications and experience with a wage equal to or greater than the median wage requirements for the position; and
  3. and employing at least one Canadian or permanent resident (ideally in the first year as described in the business plan).

This option is available anywhere in Canada.

Once an owner/operator receives a positive LMIA, he or she can obtain a work permit from Immigration, Refugees and Citizenship Canada equal to the validity of the LMIA (usually up to 2 years).  Once a work permit is obtained, the owner/operator will, in most cases, be in a position to apply for permanent residence through the Express Entry program.

It is worth noting that the Express Entry Comprehensive Ranking System (“CRS”) has been modified and since November 19, 2016, CRS points awarded for job offers (including those based on Owner/Operator LMIAs) have been reduced from 600 points to either 200 points for senior managerial positions, or to 50 points.  This means that an Owner/Operator LMIA-based work permit does not automatically guarantee an Invitation To Apply (ITA) for Permanent Residence, as it inevitably did prior to November, 2016 (although the points will still bolster the applicant’s Express Entry application).  It also means that Owner/Operator LMIAs for senior management positions generate a substantially better chance for that person to permanently immigrate to Canada under the Federal Skilled Worker Program.

While there may be damages for employee’s lack of resignation notice, there is no reliable substitute for an enforceable restrictive covenant…

Posted in Employee Obligations, Litigation, Termination
Ryley Mennie

A 2016 decision of the BC Court of Appeal is a good reminder to BC employers of the purpose of an employee’s obligation to provide reasonable notice of resignation and, if breached, what an employer can expect to recover.  It also underscores the value of an enforceable restrictive covenant.

Background

In 1997, Peter Walker began working as a manager for his aunt and uncle’s business, Consbec Inc., which was based in Ontario and provided blasting and drilling services to the mining, road building, and construction industries. Consbec’s business was based on submitting winning bids for public and private sector clients and did not involve guarantees of repeat business. Following Consbec’s expansion into western Canada in 1999, Mr. Walker took a position as manager at Consbec’s office in Kamloops, BC. Mr. Walker never signed any employment agreement or restrictive covenants with Consbec.

In 2002, Mr. Walker unexpectedly resigned from Consbec, without providing any advance notice. Consbec dispatched two employees to respond to Mr. Walker’s resignation, and discovered evidence that Mr. Walker had been planning to establish a competing business. In the four years following his resignation, Mr. Walker did in fact establish a competing business and obtained a number of blasting and drilling contracts with entities that Consbec considered its clients.

Consbec’s Lawsuit

Consbec sued Mr. Walker, claiming he breached his employment contract, as well as his fiduciary and common law obligations, when he resigned without notice and then established a competing business.  In the trial decision, the court found that Mr. Walker was not a fiduciary, as, among other things:

[182]     Peter made no corporate decisions, nor was he asked to participate in corporate meetings. Peter was not party to corporate decisions or policy making policy for Consbec, hiring and firing employees of Consbec, determining salaries or bonuses, or determining non-union wages in his division. He received no company financial records or financial statements, and he was not entitled to do so. On behalf of Consbec, Peter could not sign cheques. He could not direct the payment of accounts electronically, or move and transfer Consbec’s money from its bank accounts. Peter could not influence the payment of accounts or the transfer of funds. Nor could he direct Consbec employees, such as Mr. Sawdon, to make payments or transfer funds. Peter had no corporate credit card.

Rather, the trial judge found that Mr. Walker could best be described as an “estimator”, even though Consbec described him as a manager.  The trial judge also found that there was no evidence that Mr. Walker had competed unfairly during his employment or made any improper use of Consbec’s confidential information following his employment. As he was not a fiduciary, did not breach his common law duties of loyalty or confidence and was not subject to any restrictive covenant agreements, the court found there was no limitation on Mr. Walker’s right to quit his employment and immediately compete with Consbec.

The court did find that Mr. Walker breached his notice obligations, noting the “purpose of notice is to provide time for the employer to make arrangements to have the work that the departing employee performed looked after by others, or to find another employee.”  The court held the length of resignation notice is to be determined considering the employee’s “responsibilities, length of service, salary, and the time it would reasonably take the employer to replace the employee” or otherwise address the vacancy. However, the court declined to determine Mr. Walker’s notice period, finding it was too speculative. Instead, the court concluded that Mr. Walker should pay damages based on Consbec’s lost opportunity to make a smooth transition, and awarded Consbec $56,116.11 – the total costs it had incurred in sending its two employees to Kamloops to deal with the fallout of Mr. Walker’s departure. Both parties appealed the court’s decision.

The Court of Appeal’s Decision

In the BC Court of Appeal’s decision, the court found the judge’s failure to assess the period of notice that Mr. Walker should have provided Consbec to be an error. Without undertaking this fundamental step, the trial judge was unable to properly undertake the second step of assessing what damages Consbec suffered during the notice period. Agreeing with the trial judge that Mr. Walker was a “manager” in name only, the Court of Appeal found that he should have provided one month of notice of resignation to Consbec.

On the second question, the Court of Appeal noted “the measure of damages is not the cost to Consbec as a result of Peter leaving the company, but the cost to Consbec as a result of Peter’s failure to give notice.”  The court found that a number of expenses underlying the trial judge’s damage award would have been incurred regardless of whether Mr. Walker provided proper notice and that the trial judge had not accounted for money Consbec saved in not having to pay Mr. Walker’s salary during the notice period. After undertaking further analysis of Consbec’s losses during the notice period, the Court of Appeal determined that Consbec had not, in fact, sustained any measure of damages, and set aside the damage award in its entirety.

Conclusion

This case is a good reminder for BC employers regarding employee status, resignation and post-employment competition:

  1. A “manager” in name only will not suffice to establish heightened duties, including fiduciary duties, if the substance of the employee’s role does not support a heightened or fiduciary relationship;
  2. Although there is no statutory obligation in BC for employees to provide a minimum amount of notice of resignation, employees are nonetheless under a common law obligation to provide their employer sufficient notice to adjust to or mitigate their departure. For employees in key or more senior positions, the notice period will be longer;
  3. When an employee breaches the obligation to provide reasonable notice of resignation, an employer must prove the damages it suffered as a result of the failure to provide notice, not as a result of the employee’s resignation;
  4. Even if an employee is a fiduciary, reasonable notice of resignation and a fiduciary duty may not be sufficient to adequately protect your business, so restrictive covenants should be considered (with appropriate advice to ensure enforceability); and
  5. Restrictive covenants should be considered for any employees who could relatively easily compete with and potentially harm your business’ interests, whether or not the employee is a fiduciary or manager.

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.