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

Category Archives: Discrimination

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Why DSM-5 is Important to Employers

By Earl Phillips on Posted in Discrimination, Human Rights, Occupational Health and Safety, Workers Compensation

The long awaited DSM-5 has arrived and the controversy rages. Meanwhile, no matter what employers may think about the changes, they have no choice but to deal with the inevitable fallout. DSM-5 is the “Diagnostic and Statistical Manual of Mental Disorders” as newly revised from the previous DSM-IV. It was formally introduced this week by… → Read More

Ambulance Service Failed in Duty to Accommodate

Manager also personally liable

By Earl Phillips on Posted in Accommodation, Discrimination, Human Rights

The BC Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis.  The employee’s manager was also held personally responsible. That was the decision of the BC Human Rights Tribunal after the employer had won an earlier case on judicial review.  We reported… → Read More

McCarthy Tétrault Launches Ontario Employment Blog

By McCarthy Tétrault LLP on Posted in Discrimination

For those who may be interested, McCarthy Tétrault has just launched our sixth blog, the Ontario Employer Advisor. This blog offers the firm’s perspectives on the latest legal developments applicable to the workplace and of interest to our clients, particularly in Ontario. It provides our insights on legislative and regulatory developments, as well as new… → Read More

Bullying and Harassment, or Not

Time to Step Back and Consider

By Earl Phillips on Posted in Discrimination, Employee Obligations, Human Rights, Occupational Health and Safety, Workers Compensation

Tragic cases and more mundane legislative changes have everyone talking about bullying and harassment.  For employers it is necessary to take a step back and consider what is not workplace bullying and harassment. In BC in particular, with the advent of the new mental disorder provisions of the Workers Compensation Act, there has been a surge… → Read More

Tattoo and Body Piercing Rule Unreasonable

Need to show adverse effect.

By Robb Macpherson and Meaghan McWhinnie on Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations

An Ontario arbitrator has decided an issue of increasing concern to employers everywhere – what can be done about tattoos and body piercings?  The answer:  not much, without objective evidence of an adverse effect on your business. Thanks to our colleagues Meaghan McWhinnie and Robb Macpherson in our Toronto office for writing about this case…. → Read More

“Workplace Investigations – Part 3”

By Donovan Plomp on Posted in Discipline, Discrimination, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In earlier posts, here and here, we discussed some legal issues that arise in workplace investigations. In this post, we will discuss some of the privacy issues that can arise. The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed.  Employees being… → Read More

Wal-Mart Ordered to Pay Over 1 Million in Damages

By Earl Phillips on Posted in Damages, Discrimination, Just Cause, Litigation, Termination, Wrongful Dismissal

On October 10, 2012, a jury awarded a former Wal-Mart employee over $1.4 million dollars in damages.  The jury found that the employee was constructively dismissed due to an abusive work environment at the Windsor Wal-Mart store.  This is the largest such award in Canadian history and, as expected, will be appealed by Wal-Mart. Summary… → Read More

BC Human Rights Tribunal Awards Costs Against Complainant

By Donovan Plomp on Posted in Discrimination, Human Rights, Litigation

Employers are often frustrated by the fact that the BC Human Rights Tribunal rarely awards costs, even when an employee or former employee brings a frivolous complaint. In Edwards v. Schnitzer Steel Pacific, the Tribunal accepted the employer’s submissions that the complainant should pay costs for resiling from a settlement agreement. Edwards agreed to settle his complaint… → Read More

Month in Review

By McCarthy Tétrault LLP on Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts. Visit the summary here.  

What’s Happening With Drug Testing in Canada?

Our Continuing Cross Border Dialogue

By Earl Phillips on Posted in Discrimination, Human Rights, Labour Relations, Privacy, Unions, US vs.Canadian Employment Law

Thanks to Jeff Polsky for answering my question about minimizing the risk of a runaway jury in US employment claims.  Those are important tips for employers in the US, and for employers in Canada whether or not we see more jury trials in employment cases. Another apparent distinction between US and Canadian employment law is drug… → Read More

Employer Required to Provide Benefits After Age 65

Check Your Employment and Collective Agreement Language!

By Earl Phillips on Posted in Benefits, Compensation, Pensions, Discrimination, Human Rights, Labour Relations, Unions

An Ontario arbitrator has ruled that old language in a collective agreement was not clear enough and the employer is obligated to provide benefits to employees past 65, notwithstanding the age limitation in the benefits contracts. The case highlights the need to review employment and collective agreement language now that mandatory retirement has been outlawed. Like many collective agreements (and individual employment agreements), the… → Read More

Hot Off the Press – A Legal Guide to the Accessibility for Ontarians with Disabilities Act, 2005

By McCarthy Tétrault LLP on Posted in Discrimination

For those who may be interested, Canada Law Book has just published A Legal Guide to the Accessibility for Ontarians with Disabilities Act, 2005 by McCarthy Tétrault lawyers Sunil Kapur and Kate McNeill-Keller. The guide is a convenient, helpful resource outlining and clarifying the AODA’s complexities and obligations, and discussing the Act’s goals of equality… → Read More

Frustration – Part 2

By Donovan Plomp on Posted in Discrimination, Employee Obligations, Human Rights, Termination

In an earlier post here, we spoke about the possibility of alleging frustration of contract when an employee is absent for a lengthy period due to illness or disability.  The doctrine was also recently relied upon outside the disability context to terminate an employee whose criminal conviction prevented him from obtaining the necessary license to… → Read More

Frustration of Contract – Part 1

By Donovan Plomp on Posted in Discrimination, Employee Obligations, Human Rights, Termination

In earlier posts here and here, we discussed attendance management policies. When an employee is absent for a sufficiently lengthy period, an employer may eventually rely upon the legal doctrine of “frustration”, and terminate employment. (A similar concept for union employees is known as “innocent absenteeism”.) The doctrine of frustration of contract operates as a complete… → Read More

Overtime Class Actions and the Special Position of BC Employers

By Christopher McHardy on 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

Attendance / Absenteeism Management (Part II – Disability and Medical Information)

By Earl Phillips on Posted in Accommodation, Discrimination, Employee Obligations, Human Rights, Privacy, Termination

In a previous post found here we considered the basic requirements for an Attendance or Absenteeism Management Plan.  This post looks at two key and vexing issues in particular.        1. Disabled employees – an AMP must not: (a) put their employment in jeopardy solely on the basis of absences due to disability, (b)… → Read More

Job Applicants and Social Media – Privacy Considerations

By Earl Phillips on Posted in Discrimination, Human Capital, Human Rights, Privacy, Recruiting

There has been a lot of recent talk of employers asking job applicants for social media passwords.  The idea is fraught with problems for employers and it is far from clear that the information gained makes the problems and risks worthwhile. Many of the issues are usefully canvassed in a piece in today’s Globe. BUT… → Read More

Mental Stress, Bullying and Harassment in the Workplace

By Earl Phillips on Posted in Benefits, Compensation, Pensions, Discrimination, Occupational Health and Safety, Workers Compensation

The British Columbia government has introduced legislation to modify the WorkSafe BC approach to mental stress, and to compensate for bullying and harassment in the workplace. The proposed amendment to the Workers Compensation Act (British Columbia) is significant and will result in new types of claims for compensation under the Act.  It is hard to predict… → Read More