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Category Archives: Best Practices

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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

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

Be Careful What You Wish For: Social Media Background Checks and Privacy Laws

Posted in Best Practices, Employer Obligations, Privacy

Social media has drastically changed the way people communicate and do business. Naturally, employers may want to take advantage of the convenience of performing background checks on social media. But with increased use of social media comes increased risk of a privacy violation.

In May 2017, the Office of the Information and Privacy Commissioner for British Columbia (OIPC) published a guidance document aimed at helping private organizations and public bodies navigate the complex relationship between social media background checks and privacy laws. The document’s main points are summarized below.

The collection, use, and disclosure of personal information retrieved from social … 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

Office of the Information and Privacy Commissioner highlights transparency and trust during Privacy Awareness Week

Posted in Best Practices, Employer Obligations, Privacy

If you follow the Office of the Information and Privacy Commissioner for British Columbia on twitter (@BCInfoPrivacy), then you will have noticed a series of posts about Privacy Awareness Week. Privacy Awareness Week is an initiative commenced in 2006 by the Asia Pacific Privacy Authorities forum, of which British Columbia is a member, and is held annually to promote the awareness of privacy issues.

This week (May 15 to May 21), the Office of the Information and Privacy Commissioner is undertaking various activities for individuals and businesses in celebration of Privacy Awareness Week, including:

  • Releasing the
Continue Reading

Can an employment agreement executed after the employee starts work be enforced? The Ontario Court of Appeal says yes.

Posted in Best Practices, Employer Obligations, Termination

Julia Wood received an offer for employment from Fred Deeley Imports (“Deeley”) on April 17, 2007. Wood accepted the offer during the phone call, and later received an email from Deeley which outlined the terms of her employment. The parties could not recall the date of the email, but it was received by Wood prior to commencing employment with Deeley on April 23, 2007. Then, on April 24, 2007, Wood met with the human resources representative and signed various employment documents, including an employment agreement. Eight years later, Deeley terminated Wood’s employment. Wood commenced a wrongful dismissal action, alleging (among … 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

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