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Category Archives: Employer Obligations

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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

British Columbia Supreme Court rules on reasonable notice when an employee is terminated before their first day of work

Posted in Employer Obligations, Litigation, Termination, Wrongful Dismissal

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the Court considered a case where the employer terminated the plaintiff’s employment before he commenced work. The Court rejected employer’s argument that the probation period clause applied to limit its liability to provide notice of termination of employment. Despite the contractual termination provisions in the employment agreement, the Court awarded the plaintiff common law reasonable notice. It is important that employers take note of the legal principles in this case if they plan to retract an offer of employment.

Background

On October 16, 2017, Colton Buchanan accepted an offer of employment … Continue Reading

BC’s minimum wage will increase effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Legislative Changes, Legislative Requirements, Wage and Hours

On August 15, 2017, the provincial government announced that British Columbia’s minimum wage will increase from $10.85 to $11.35 per hour effective September 15, 2017. This is the Ministry of Labour’s first step in a long-term plan to raise the minimum wage to $15 per hour.

Wage increases will also take effect for employees in the following categories:

  • live-in home support worker;
  • live-in camp leader;
  • resident caretaker;
  • farm workers; and
  • liquor servers.

Please contact us directly if you would like more information about any increase in wages affecting your workforce and the related amendments to the Employment Standards Regulation (B.C. … Continue Reading

The Canadian Human Rights Act gets an update with the addition of “gender identity or expression”

Posted in Discrimination, Employer Obligations, Human Rights, Legislative Changes

On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received Royal Assent. As a result, “gender identity” and “gender expression” are now prohibited grounds of discrimination under the Canadian Human Rights Act (the “Act”). In particular, section 3(1) of the Act now reads:

Prohibited grounds of discrimination

3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an 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

Fishing for Notice: British Columbia Supreme Court addresses inducement and contingency factors in wrongful dismissal suits

Posted in Employer Obligations, Recruiting, Termination

In a recent BC Supreme Court decision, Sollows v. Albion Fisheries Ltd., the court clarified what qualifies as inducement in the context of a reasonable notice period assessment.  The court also took a novel approach to contingency, which can arise where the hearing takes place before the end of the employee’s reasonable notice period.

Background

Don Sollows’ employment was terminated in July, 2016, by Albion Fisheries Ltd. This was Mr. Sollows’ second employment stint with Albion – he previously worked for Albion for 19 years, from about 1985 to 2004.  In 2004, Mr. Sollows accepted the role of senior … 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

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

Government of Ontario releases the Changing Workplaces Review Final Report

Posted in Employer Obligations, Employment Standards, Labour Relations
On May 22, 2017, the Ontario Government released the much-anticipated Changing Workplaces Review Final Report.

The Report recommends wide-sweeping changes to Ontario’s employment and labour laws. The Ontario Government is expected to act on many of the recommendations within weeks, and the reverberations will be felt across Canada.

For more information, please visit the blog post “Government of Ontario releases the Changing Workplaces Review Final Report” prepared by our colleagues in Toronto.

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

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

Doing Business in Canada 2017: Read the latest updates to our popular guide

Posted in Employer Obligations, Employment Standards, Human Capital, Human Rights

McT_DBiC_Cover_3D_SEPT2016

McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition includes sections on: Immigration (at page 129); Employment (at page 151); and Dispute Resolution (at page 171).

General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.

Download the updated guide.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

The Office of the Information and Privacy Commissioner reminds BC’s private businesses that use of video surveillance is a last resort

Posted in Employer Obligations, Privacy

In February 2017, at the 18th annual Privacy and Security Conference, Acting Commissioner Drew McArthur (“Commissioner”) commented on the first-ever audit of a private sector business conducted by the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”). He stated that OIPC “used this audit as an important opportunity for public education, and a reminder to private businesses that they should only use video surveillance as a last resort after exploring other less privacy-invasive options.” The Commissioner’s speech is available here.

OIPC initiated the audit of the lower mainland medical clinic (“Clinic”) after receiving a complaint … Continue Reading

New WorkSafeBC regulations for joint occupational health and safety committees effective April 3, 2017

Posted in Employer Obligations, Legislative Changes, Occupational Health and Safety, WorkSafeBC

In British Columbia, a workplace with 20 or more workers must have a joint occupational health and safety committee (“Committee”), and a workplace with 10-19 workers must have a worker health and safety representative. Effective April 3, 2017, amendments to the Occupational Health and Safety Regulation will require the following:

  1. Employers must ensure that a written evaluation is conducted annually to measure the effectiveness of the Committee. Section 3.26(b) of the Regulation sets out who can conduct the evaluation, and section 3.26(3) of the Regulation sets out what information must be covered by the evaluation. WorkSafeBC reports that it 
Continue Reading

BC Supreme Court clarifies law regarding employment probation

Posted in Employer Obligations, Employment Standards, Termination

The British Columbia Supreme Court recently addressed key issues regarding probationary periods in employment contracts.

Background

In Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, the contract of employment executed by the plaintiff, Mr. Ly, contained the following probation clause:  “Employees are required to serve an initial probationary period of six (6) months for new positions” (the “Probation Clause“).

Mr. Ly was dismissed from his position after two months and challenged the enforceability of the Probation Clause. He argued that such a brief reference to probation was not sufficient to rebut the common law … Continue Reading

Denial of coverage for medical marijuana under employee benefit plan found to be discriminatory

Posted in Benefits, Compensation, Pensions, Employer Obligations, Human Rights

In 2010, Mr. Skinner was involved in a motor vehicle accident while working, and subsequently developed a physical and mental disability. After exhausting conventional drug options to treat his symptoms, Mr. Skinner’s physician prescribed medical marijuana. The medication provided him with some relief from his chronic pain and improved functionality. Mr. Skinner requested coverage for the medical marijuana under the Canadian Elevator Industry Welfare Trust Plan (“Plan”), a private benefit plan designed to provide health and related benefits to union employees in the elevator industry.

The Plan’s Trustees denied the request on the basis that: (i) medical marijuana did not … Continue Reading

B.C. announces a 50 cent increase to the minimum wage effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Wage and Hours

Earlier this month, we posted a list of minimum wage increases across Canada and noted Premier Christy Clark’s May 2016 announcement that the provincial government was committed to raising the minimum wage for employees in British Columbia to $11.25 per hour effective September 15, 2017 (click here).  In line with this commitment, B.C.’s Jobs, Tourism and Skills Training Ministry issued a news release yesterday announcing that, effective September 15, 2017, the minimum wage will rise by 50 cents to $11.35 an hour and the minimum wage for liquor servers will increase to $10.10 an hour. Read the full news … 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

Doing Business in Canada 2016: Read the latest updates to our popular guide

Posted in Employee Obligations, Employer Obligations, Employment Standards, Human Capital, Human Rights

McT_DBiC_Cover_3D_SEPT2016

McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition reflects legislative changes including:

  • Changes to the Competition Act and Investment Act Canada;
  • and an updated Mergers and Acquisitions chapter including new rules on takeover bids in Canada.

General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.… 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

An expanded Canada Pension Plan

Posted in Employee Obligations, Employer Obligations, Legislative Changes, Pensions

Much has been said about the recent agreement in principle between 8 of the 10 provincial finance ministers and the federal finance minister to expand the Canada Pension Plan. Our colleagues in Ontario have posted their thoughts on the matter, which includes a useful summary on the agreement, links to further details, some implications for employers – both generally and specifically in Ontario – and steps that employers should take to anticipate the expected changes.… Continue Reading