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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

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BCCA Eyes Enforceability of Restrictive Covenant in IRIS Appeal

Posted in Best Practices, Employee Obligations, Employer Obligations

Restrictive covenants are often a key component of employment agreements and commercial transactions. Enforceability, however, can be challenging, especially in the employment context.  The B.C. Court of Appeal’s recent decision in IRIS The Visual Group Western Canada Inc. v. Park, 2017 BCCA 301, is a good reminder and provides valuable insight into several related legal principles.  The implications of the decision will be of interest to many B.C. employers who rely on restrictive covenants or who are contemplating doing so.

Background

IRIS The Visual Group Western Canada Inc. (“IRIS”), an eye care services provider and eyewear … Continue Reading

“Waiving” Goodbye to Solicitor-Client Privilege

Posted in Best Practices, Investigations, Litigation

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 … Continue Reading

The Government of Canada launches a new Global Skills Strategy

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

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 … Continue Reading

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

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 … Continue Reading

Dependent contractor receives 12 months pay in lieu of notice

Posted in Best Practices, Employer Obligations, Independent Contractors, Termination

The recent Supreme Court decision of Glimhagen v. GWR Resources Inc., 2017 BCSC 761, illustrates how an independent contractor can become a dependent contractor – an intermediate category on the spectrum between employee and independent contractor – as the relationship between contractor and company evolves, as well as the risk a company faces if it fails to address such changes in the contract for service, particularly in connection with contractual termination provisions.

Facts

Lars Glimhagen (“Glimhagen”) began providing services to GWR Resources Inc. as an independent contractor in 1989. For a flat monthly fee, Glimhagen provided GWR Resources with … Continue Reading

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

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

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 … Continue Reading

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

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 … Continue Reading

BC revamps Provincial Nominee Program with enactment of Provincial Immigration Programs Act and Regulation

Posted in Human Capital, Immigration, Legislative Changes

The Provincial Immigration Programs Act, S.B.C. 2015, c. 37 (“PIPA“) and the Provincial Immigration Programs Regulation (“Regulation“) came into effect on February 1, 2017.

PIPA strengthens the administration of the Province’s immigration programs and designates decision-making authority for the British Columbia Provincial Nominee Program (“PNP“) to the director, provincial immigration programs.

The Regulation governs the delivery of the PNP, which is British Columbia’s only direct economic immigration tool. Specifically, the Regulation:

  1. grants authority to collect PNP fees,
  2. sets out the amount of PNP fees,
  3. allows for inspections to be conducted to monitor compliance
Continue Reading

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

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 Continue Reading

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

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, Continue Reading

Family status quo for British Columbia

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

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 Continue Reading

Foreign Laws Create Human Rights Headaches for Canadian Employers

Posted in Discrimination, Human Rights

The reality of the global economy is that business decisions are frequently made based on factors from both inside and outside Canada’s borders. Employers in industries that may be subject to foreign laws, regulations or decisions can face real challenges if those factors affect their Canadian legal obligations, particularly when it comes to human rights issues.  Throw in some uncertainty when a foreign decision is based on unknown security threats, and it can be a recipe for a long legal struggle.

Bombardier Inc. (Aerospace Training Centre) (“Bombardier”) faced this issue, and over a decade of human rights proceedings, when it … Continue Reading

New Investigation Requirements, On-The-Spot Financial Penalties and Work-Stop Orders In Wake Of Babine and Lakeland Sawmill Disasters

Posted in Investigations, Legislative Changes, Occupational Health and Safety, Workers Compensation, WorkSafeBC

Before the Babine and Lakeland sawmill disasters in 2012, employers were already under an obligation to investigate any workplace incident involving serious injury or death, major structural failure or collapse, major release of a hazardous substance, a blasting accident that caused personal injury, a dangerous incident involving explosive, a diving accident, any accident or other incident that resulted in injury to a worker requiring medical treatment, and any near misses.

Now, as a result of amendments to the Workers’ Compensation Act (WCA), following Royal Assent to Bill C-9 on May 14, 2015, the manner in which employers carry … Continue Reading

Vancouver L&E Group Welcomes Laura DeVries

Posted in Welcome

We are delighted to welcome Laura DeVries as an associate in McCarthy Tétrault’s Labour and Employment Group in Vancouver.  Prior to joining the firm in November of 2014, Laura clerked at the Supreme Court of Canada for Justice Andromache Karakatsanis. Laura received her law degree from the University of British Columbia in 2013.

Laura has already established herself as a confident and knowledgeable speaker on contemporary labour and employment issues at our recent client conference and demonstrates a keen enthusiasm and natural aptitude for the broad variety of issues that arise in labour and employment.

We are very … Continue Reading

Temporary Foreign Workers: New Fees and Regulatory Changes

Posted in Human Capital, Immigration, Legislative Changes, Temporary Foreign Worker Program

We previously posted on the public outcry over and the federal government’s commitment to revising the Temporary Foreign Worker Program (“TFWP”) here and here .

New fees and regulatory changes for the TFWP are set to take effect on February 21, 2015. Our colleagues in Montréal have published a helpful article to help employers understand how these new fees and regulatory changes may impact their engagement with the TFWP. The full text of the article can be read here.

In light of the scrutiny the TFWP has been experiencing of late, this may not be the last set of changes … Continue Reading

McCarthy Tétrault Labour and Employment Group Welcomes Kirsten Hume

Posted in Awards and Recognitions, Welcome

We are very happy to announce that Kirsten Hume has joined McCarthy Tétrault’s Vancouver office as counsel in its Labour and Employment group.

Kirsten has a wealth of experience practicing Labour and Employment law and has advised and represented employers on a wide range of employment-related matters, including:

 

  • disability, accommodation and related human rights issues, and defending employers from human rights complaints;
  • dismissal of employees, with and without just cause, and representing employers in actions for wrongful and constructive dismissal;
  • drafting and preparation of employment agreements, policies and other workplace documents;
  • complex jurisdictional issues related to long-term disability and
Continue Reading

‘Unlike’ – Social Media Gaffes Not Cause To Dismiss Communications Manager

Posted in Termination

Lack of Warnings about inappropriate online posts was fatal to employer’s case

As more people use social media to communicate in and out of the office, social media posts by employees are increasingly a concern for employers. In a recent case, the International Triathlon Union (“ITU”) dismissed its Senior Manager of Communications because of negative posts she made on her personal blog and social media accounts.  In Kim v. International Triathlon Union, the British Columbia Supreme Court found there was no just cause for her dismissal because she had not been clearly warned that her communications put her employment … Continue Reading

Supreme Court of Canada Gives Quick Win To BCTF On Parental Benefits

Posted in Benefits, Compensation, Pensions, Human Rights, Labour Relations, Litigation, Unions

The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.

The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that … Continue Reading

OH&S Month Part 4: The Loneliest Number? Regulations for Employees Working Alone

Posted in Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC

Many employees work alone or in isolation, whether from time to time or as a regular part of their work. In addition to an employer’s general statutory obligation to ensure a safe work environment under the Workers’ Compensation Act, employers have additional specific obligations to protect employees who work alone or in isolation under the Occupational Health and Safety Regulation (the “Regulation”).

Under the Regulations, “working alone or in isolation” means to work in circumstances where assistance would not be readily available to the employee, either in the case of an emergency, or if the employee is injured or … Continue Reading

How Not To Fill A Labour Shortage

New Challenges for Employers under the Temporary Foreign Worker Program

Posted in Discrimination, Human Capital, Immigration, Recruiting, Temporary Foreign Worker Program

Since we last posted about the Temporary Foreign Worker Program (“TWFP”) here and here, the federal government has, in the face of political pressure, introduced significant changes to the program. Employers now face greater challenges and cost in addressing labour shortages through the use of temporary foreign workers (“TFWs”).

First, employers are now subject to a cap on the proportion of their workforce which can be filled by low wage TFWs. A “low wage” job is any job which pays below the provincial or territorial median wage. Employers with ten or more employees can employ only 10% of their … Continue Reading

Teachers’ Strike: What does it mean for your workplace?

Posted in Accommodation, Discrimination, Employment Standards, Family Status, Human Rights, Labour Relations, Unions, Wage and Hours

While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?

The Legal Framework

First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care.  Employers do not have the discretion to … Continue Reading

Update on Overtime Class Actions in Canada

Ontario Court approves unique settlement of overtime class action

Posted in Employment Standards, Litigation, Wage and Hours

Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007. While overtime class action claims are still not possible in British Columbia (for the reasons discussed here), claims can balloon in other provinces when a representative plaintiff claims unpaid overtime for themselves and on behalf of colleagues.

On August 12, 2014, the Ontario Superior Court of Justice approved the settlement of one of these overtime class actions, Fulawka v. The Bank of Nova Scotia.  Our colleagues in Calgary have posted about this recent development … Continue Reading

SCC Decision Regarding Wal-Mart In Québec A Cautionary Case For All Canadian Unionized Employers

Posted in Labour Relations, Litigation, Termination, Unions

Our colleagues in Québec have produced a helpful summary of the recent Supreme Court of Canada decision involving a Wal-Mart in Jonquière, Québec, found to have breached its statutory duties during the freeze period following certification of a bargaining unit.

After negotiations for a collective agreement reached a standstill, the Wal-Mart in question decided to close its doors, for what it alleged to be legitimate business reasons. The arbitrator appointed to decide the Union’s grievance of the closure concluded that Wal-Mart’s decision to close the store was not in the course of the company’s ordinary business and therefore breached section … Continue Reading

The B.C. Civil Resolution Tribunal and Online dispute resolution: Will it work for your business?

Posted in Litigation

This fall, British Columbians will have a new option for resolving small claims disputes. The new Civil Resolution Tribunal will use a mix of online platforms, telephone, videoconferencing, mail and in some cases, in-person meetings, to resolve small claims matters under $25,000 and certain strata disputes. The Tribunal provides a multi-stage process designed to reach mutual agreement at negotiation and case management stages, with the power to make final decisions if resolution cannot be achieved. Nominal fees will be charged to enter the process, escalating as the involvement of the Tribunal escalates. The ultimate goal of this Tribunal is to … Continue Reading