Header graphic for print
British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Author Archives / Ryley Mennie

Subscribe to posts by Ryley Mennie

Genetic code meets Canada Labour Code

Posted in Discrimination

Genes are the building blocks of life, shaping our physical traits, personal characteristics, and our biological make-up, and the field of genetic testing and mapping is advancing rapidly. With a simple cheek swab, health care professionals can now often predict whether an individual is predisposed to developing a particular disease or medical condition.

While such scientific advances can enable individuals to take proactive steps to avoid adverse health consequences, genetic testing also brings with it the risk that individuals may be discriminated against on the basis of the personal information within their genetic codes, either in the workplace, in the … Continue Reading

Government of Alberta proposes changes to labour and employment standards codes

Posted in Employer Obligations, Employment Standards, Labour Relations, Legislative Changes

Last week, the Government of Alberta tendered and passed first reading of Bill 17: Fair and Family-friendly Workplaces Act . Bill 17 proposes a number of amendments to Alberta’s Employment Standards Code and Labour Relations Code. If passed, these amendments will have a significant impact on employers’ policies, practices and business as a whole.

For more information on the proposed changes, please visit the blog post “Bill 17 – Proposed Changes to Alberta’s Employment Standards Code” prepared by our colleagues in Calgary.… Continue Reading

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

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 … Continue Reading

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

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 … Continue Reading

Reasonable offer prevents litigious complainant from proceeding at BC Human Rights Tribunal

Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations, Litigation

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 … Continue Reading

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

Posted in Discrimination, Human Rights, Legislative Changes, Legislative Requirements

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 … Continue Reading

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

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

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 … Continue Reading

Have your say: federal employers may soon have to accommodate “millennials”

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Rights, Legislative Changes

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 Continue Reading

Don’t make promises you can’t keep (even inadvertent ones) – a good lesson for all BC employers

Posted in Benefits, Compensation, Pensions, Best Practices, Employer Obligations

The recent decision of the BC Supreme Court in Feldstein v. 364 Northern Development Corporation provides a cautionary tale for well-meaning employers seeking to provide compensation and benefits package details to candidates during the interview process.

Cary Feldstein had been diagnosed with Cystic Fibrosis at the age of nine, obtained a Bachelor of Arts in Computer Science and worked in his chosen field of software engineering and was the major breadwinner for his family. In 2012, his existing employment was terminated and he sought out employment with other firms, including 364 Northern Development Corporation (“364”).  The court found that the … Continue Reading

Make Whole Remedies and Good Faith Crucial to Mitigation

Posted in Best Practices, Damages, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.

In Fredrickson v. Newtech Dental Laboratory Inc.,  Leah Ann Fredrickson had worked for Newtech, a specialty dental laboratory, for about 8.5 years, when she took a leave of absence in connection with her husband’s illness and an accidental injury to her son. Newtech’s owner, Vince Ferbey, took issue with the manner in which Ms. Fredrickson took the leave and the effects on Newtech’s operations. When Ms. Fredrickson returned to work on July 20, 2011, Mr. Ferbey … Continue Reading

Further Guidance From the Privacy Commissioner

Posted in Best Practices, Privacy

Following our post, here, regarding the outcome of the investigation conducted by the Office of the Information and Privacy Commissioner (“OIPC”) into the District of Saanich spyware complaint, the OIPC has published guidelines for B.C. employers to follow when implementing IT protections to ensure privacy legislation is complied with, found here. In conjunction with the best practices identified in our post, the OIPC’s guidelines are a useful reference that can help employers protect their businesses and avoid privacy complaints.  It is worth noting that the OIPC’s guidelines are guidelines only and do not have the effect of law. … Continue Reading

Lessons From The Saanich Spyware Fiasco And New Privacy Laws To Be Aware Of

Posted in Best Practices, Employee Obligations, Intellectual Property, Investigations, Privacy

In our current information age, security over electronic information and protection against unauthorized access is foundational to employers’ businesses. To guard against endlessly multiplying electronic threats, employers must resort to electronic means and, understandably, often resort to broad and comprehensive software to protect their operations. However, the situation involving the District of Saanich earlier this year is a good reminder to all B.C. employers that cyber-protection cannot be used at the expense of employees’ privacy. Moreover, recent amendments to the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which our colleagues posted on here, now make privacy law … Continue Reading

Context is Key: New Trial for Dismissed CIBC Employee

Posted in Discipline, Employee Obligations, Investigations, Litigation, Termination

Previously, we posted here on the case of the CIBC employee who had been dismissed for using her personal account to complete a wire transfer for a client in Ogden v CIBC. The initial trial decided only that Ms. Ogden had been wrongfully dismissed and the heads of damages. The trial judge found that CIBC had conducted a flawed investigation of Ms. Ogden’s conduct and there was a lack of clarity, training and consistency in its policies and procedures.

In a decision handed down April 27, 2015, the BC Court of Appeal ordered a new trial. In particular, the Continue Reading

SCC Orders Parliament to Reconsider RCMP Labour Relations

Posted in Labour Relations, Legislative Changes

Until last Friday, the Royal Canadian Mounted Police was Canada’s only police force that was legislatively prohibited from unionizing. On January 16, 2015, the Supreme Court of Canada ruled in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, that the exclusion of RCMP members from the definition of “employee” under the Public Service Labour Relations Act (Canada) [PSLRA] and the Staff Relations Representative Program (“SRRP”) infringed on RCMP members’ freedom of association under s.2(d) of the Charter of Rights and Freedoms.  This decision overrules the Court’s previous decision in Delisle v. Canada Continue Reading

Bill To Amend Definition Of ‘Sex’ Under BC Human Rights Code Passes First Reading

Posted in Discrimination, Human Rights, Legislative Changes

Private member’s Bill M 211-2014, titled Gender Identity and Expression Human Rights Recognition Act, passed first reading in the BC Legislature on November 20, 2014. If eventually given royal assent, the bill will amend the definition of ‘sex’ under the Human Rights Code to include “gender identity” and “gender expression”.

The full text of the bill can be read here. We will be sure to keep you updated as this bill makes its way through the Legislature and of its impact on human rights law in the province.… Continue Reading

Holiday Parties – Keep the Season Jolly

Posted in Discrimination, Human Rights, Occupational Health and Safety, Workplace Training

Our colleague in Toronto, Melissa Kennedy, recently posted about the joys and legal perils of workplace holiday parties. Her post is an excellent reminder of best practices every employer should undertake to make sure that a holiday party does not lead to less jolly legal consequences. We reproduce Melissa’s post below.

 

With the holiday season fast approaching, many organizations are in the midst of planning their annual holiday parties, meant to recognize the culmination of a year of hard work by employees and celebrate the holiday season. Although this time of year is marked with celebration and provides … Continue Reading

OH&S Month Part 2: Unsafe Work Refusals, Now Narrower for Federal Workers

Posted in Investigations, Labour Relations, Legislative Changes, Occupational Health and Safety, Unions, Workers Compensation

In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others’ health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.

One aspect of … Continue Reading

Rare Costs Award at BC Human Rights Tribunal for Improper Conduct

Posted in Discrimination, Human Rights, Legislative Changes, Litigation, Termination

Despite an employer’s legitimate basis for terminating an employee’s employment, it will often find itself a respondent to a human rights complaint following termination. The costs for employers to defend a human rights complaint can be very high and, unlike in the courts, the B.C. Human Rights Tribunal does not have jurisdiction to order unsuccessful parties to pay the successful party’s legal fees. However, in exceptional circumstances, the Tribunal has a limited jurisdiction under the Human Rights Code to make punitive costs awards for “improper conduct” that impacts the integrity of the Tribunal’s processes.

The Tribunal found such circumstances to … Continue Reading

BC Supreme Court Declines to Defer to Baptist Church

Churches and other employers must be cautious when relying on internal procedures to dismiss individuals

Posted in Litigation, Termination, Wrongful Dismissal

The B.C. Supreme Court recently decided an application to hear a pastor’s wrongful dismissal claim, which may impact employers both inside and outside of ecclesiastical contexts.

In Kong v Vancouver Chinese Baptist Church, the Vancouver Chinese Baptist Church (“VCBC”) applied to have a claim for wrongful dismissal filed by its former Senior Pastor, the Reverend Alfred Yiu Chuen Kong (“Rev. Kong”), dismissed. Rev. Kong filed the underlying claim after he was dismissed by the VCBC following a long series of VCBC committee meetings and discussions to resolve internal strife involving Rev. Kong.

The VCBC applied to court to have … Continue Reading

Getting in the Spirit – BC Brings New Liquor Laws Into Force

Posted in Legislative Changes, Workplace Training

On June 20, 2014, the B.C. Government announced a host of new liquor laws that will be of interest to B.C. employers.  Regulations that came into force under Bill-15, also known as the Liquor Control and Licensing Amendment Act, 2014, amend the Liquor Control and Licensing Regulation to permit:

 

  • licensed establishments to vary drink prices and provide “happy hour” pricing at different times throughout the day; however, happy hour prices cannot go below prescribed minimums and must be set in advance;
  • businesses that retail or manufacture alcoholic beverages to market their wares in a broader range of venues
Continue Reading

Employer’s Potential Liability in Class Action for Employee’s Breach of Privacy A Good Reminder For All

Posted in Employee Obligations, Litigation, Privacy

A recent decision of the Ontario Superior Court of Justice highlights the increasing focus on (and potential liability arising from) customers’ and clients’ privacy rights and the importance for employers to properly monitor the activities of their employees. Additionally, while the decision comes from Ontario, which, unlike British Columbia, has endorsed the tort of “intrusion upon seclusion”, it also raises questions about whether British Columbia courts will eventually recognize the tort.

Evans v The Bank of Nova Scotia was a decision regarding the certification of a class action that involved a bank employee who admitted to accessing and stealing personal … Continue Reading

Wal-Mart (Still) Pays High Price for Failing to Investigate Employee’s Complaint

Posted in Discrimination

Our colleagues in Ontario recently published a blog post on a decision of the Ontario Court of Appeal involving Wal-Mart that is of interest to employers. The case is a good reminder of the importance of properly implementing and following a comprehensive investigation procedure in response to employee complaints of discrimination and/or harassment.… Continue Reading

“Control and Dependency Define the Essence of Employment”, SCC Rules

Focus is on substance, not form

Posted in Age, Discrimination, Human Rights, Independent Contractors, Litigation

The Supreme Court of Canada released a highly-anticipated decision for professional partnerships, employers and employees today in McCormick v Fasken Martineau DuMoulin LLP.   We commented previously on the facts of the case and the history of proceedings to the British Columbia Court of Appeal here.

In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code.  The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an … Continue Reading

From the Desk of the HR Manager: Spring Cleaning – Performing an HR Audit

Posted in Discipline, Employment Standards, Litigation, Occupational Health and Safety, Privacy, Termination, Wage and Hours, Workers Compensation, WorkSafeBC

Our colleagues in Ontario recently posted a very useful outline of an HR audit that will help BC employers ensure they stay up-to-date and on top of the wide variety of employment-related demands in their operations. As the saying goes, “an ounce of prevention is worth a pound of cure”.… Continue Reading