Author Archives / Christopher McHardy

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Temporary Foreign Miners Allowed

Federal Court dismisses union challenge

By Christopher McHardy on May 22nd, 2013 Posted in Human Capital, Immigration, Recruiting, Unions

Our Federal Court has dismissed a court challenge by two unions against HD Mining. The unions claimed that the company hired more than 200 temporary Chinese workers for its coal mine in Tumbler Ridge in northeastern BC, while deliberately ignoring or passing over many qualified and willing Canadian applicants. The International Union of Operating Engineers,… → Read More

WorkSafeBC Approves New Workplace Bullying and Harassment Policies

By Christopher McHardy on April 26th, 2013 Posted in Occupational Health and Safety, Workers Compensation

WorkSafeBC’s Board of Directors has just published 3 new Occupational Health and Safety policies concerning workplace bullying and harassment. The following new policies take effect on November 1, 2013: · Employer Duties – Workplace Bullying and Harassment – D3-115-2; · Worker Duties – Workplace Bullying and Harassment – D3-116-1; and · Supervisor Duties –… → Read More

Mandatory Retirement for Firefighters

Is it valid?

By Christopher McHardy on March 28th, 2013 Posted in Age, Discrimination, Human Rights, Termination

The BC Human Rights Tribunal has decided to hear a complaint from an on-call firefighter in Chilliwack about his forced retirement at age 60 (news reports claim Mr. Shellard is now 63 years old). The case is significant for at least two reasons. First, it is a challenge to mandatory retirement in a job that is generally… → Read More

Earl Phillips wins Lexology Client Choice Award for outstanding employment and labour work!

By Christopher McHardy on February 28th, 2013 Posted in Awards and Kudos

Please indulge me in congratulating some of my partners, and especially Earl Phillips, the head of our BC Labour and Employment Law Group. Last night, at a gala in London, UK, Lexology honoured the firm and three of our partners with the following 2013 Client Choice Awards: Law Firm of choice in British… → Read More

Death of a Guest Not a Workplace Safety Matter

There must be some connection to worker safety.

By Christopher McHardy on February 19th, 2013 Posted in Occupational Health and Safety

Thank goodness! The ruling that an accidental drowning death of a guest at a resort had to be reported by the resort owner under occupational health and safety law in Ontario as if it was a death or critical injury occurring at a workplace has been overturned. The Ontario Court of Appeal is to be… → Read More

Trends in Human Rights

By Christopher McHardy on December 18th, 2012 Posted in Discipline, Discrimination, Human Rights, Termination

I recently had the opportunity to present a paper summarizing significant human rights decisions of 2012 at the annual BC Continuing Legal Education conference on human rights law. The conference was very well organized and featured a number of excellent topics and speakers. In considering the case summaries I reviewed at the conference, I have… → Read More

British Columbia’s New Limitation Act

By Christopher McHardy on October 10th, 2012 Posted in Damages, Litigation, Termination, Wrongful Dismissal

In an earlier post we notified you of BC’s new Limitation Act. Further information from our litigation group can be found here.

Limitation Act

By Christopher McHardy on October 4th, 2012 Posted in Damages, Termination, Wrongful Dismissal

The Government of British Columbia is introducing a new Limitation Act, setting out the time limit people have to file civil law suits in British Columbia. On October 2, 2012, the Government announced that the new Limitation Act will come into effect on June 1, 2013. This is relevant for employers who may be subject to… → Read More

Reputation Damages for Terminated Employee

Tipple Case Follows Wallace

By Christopher McHardy on August 15th, 2012 Posted in Damages, Termination, Wrongful Dismissal

Yes, an employee can recover for damage to his reputation caused by the manner of termination of his employment. This is not a surprising outcome based on the principles established by the Wallace decision of the Supreme Court of Canada, but it took a Federal Court of Appeal review of an earlier decision to get… → Read More

Overtime Class Actions and the Special Position of BC Employers

By Christopher McHardy on July 11th, 2012 Posted in Discrimination, Employment Standards, Human Capital, Immigration, Recruiting, Wage and Hours

Big news from Ontario on overtime claims – the Court of Appeal will allow claims for statutory overtime by CIBC and Bank of Nova Scotia employees to proceed as class actions. (Update: The Supreme Court of Canada decided on March 21, 2013 that it will not hear the banks’ appeals, so these cases may be… → Read More

Restrictions on Withholding Pay

By Christopher McHardy on June 7th, 2012 Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) prohibits an employer from withholding or deducting any part of wages unless the employee has consented in writing. Problems frequently arise when employment terminates and the employer seeks to recover loans, advance payments (of wages or vacation pay) or other debts from the employee by way of deductions from… → Read More

Vacation Pay Trap

By Christopher McHardy on May 17th, 2012 Posted in Employment Standards

Under the Employment Standards Act (British Columbia), vacation pay must be paid at the minimum rate of 4% or 6% (depending on the employee’s length of service). If the employee is entitled by contract to more than the minimum standard of vacation, the vacation pay is also increased at a rate of 2% per week…. → Read More

What Makes an Independent Contractor?

By Christopher McHardy on April 24th, 2012 Posted in Employee Obligations, Employment Standards, Wage and Hours

Employee or independent contractor? It’s an important question with important consequences. The question can arise in different contexts, can be resolved with different tests, and can lead to different results. But looking at the four common tests will help you determine the right answer. (1) The Control Test The control test has been summarized as… → Read More

The Limits to Averaging Agreements

By Christopher McHardy on April 23rd, 2012 Posted in Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) allows some flexibility in hours of work without overtime pay through the use of averaging agreements. Unfortunately, the requirements for an enforceable averaging agreement are often impractical. An averaging agreement must: be agreed, in writing, with each employee; specify the start and end dates; be signed by both parties;… → Read More

Family Status Discrimination: How Broad Is It?

By Christopher McHardy on March 29th, 2012 Posted in Accommodation, Discrimination, Family Status, Human Rights

Controversy over the proper test for finding discrimination on the basis of family status continues. The main contenders are a change imposed by the employer causing serious interference with a substantial duty (the Campbell River test); and any adverse effect (the Johnstone test). To compare the difference in practical terms, consider childcare obligations. The first test… → Read More

The Employment Standards Act Applies, Regardless

By Christopher McHardy on February 24th, 2012 Posted in Employment Standards

Most employees are covered by the Employment Standards Act (British Columbia). There are only limited exclusions of professionals and some employees in job creation or training programs. It is not possible to “contract out” of the Act. The Act applies regardless of the wishes of the employer and the employee. The Act creates minimum terms and… → Read More