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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

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.

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.