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Category Archives: Litigation

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BC will see big changes to small claims on June 1, 2017

Posted in Legislative Changes, Litigation

On March 20, 2017, the Province of British Columbia announced significant changes to the jurisdiction of the Civil Resolution Tribunal (CRT) and Provincial Court to address small claims court matters.

Since June 2016, British Columbians have turned to the CRT to resolve strata property disputes online. Effective June 1, 2017, it will be mandatory for most disputes up to $5,000 to use the CRT. This change will capture almost all employment-related disputes up to $5,000, which would otherwise have proceeded in small claims court. The CRT’s online process is intended to be efficient, accessible, and inexpensive, and can be accessed 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

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

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

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

SCC Grants Leave to Appeal on Canada Labour Code Without Cause Dismissal

Posted in Litigation, Termination, Wrongful Dismissal

Our colleagues in Ontario recently posted here on the case of Wilson v. Atomic Energy of Canada Limited,where the Federal Court of Appeal held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code. This was a welcome clarification in the law for federal employers, who had previously been faced with a line of authority from adjudicators which limited without-cause dismissals to very narrow circumstances.

The Supreme Court of Canada has granted 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

Supreme Court of Canada Gives Quick Win To BCTF On Parental Benefits

Posted in Benefits, Compensation, Pensions, Human Rights, Labour Relations, Litigation, Unions

The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.

The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that … Continue Reading

OH&S Month Part 3: Annual Review Of Your Bullying and Harassment Policies

Posted in Investigations, Litigation, Murphy's Laws of HR, Occupational Health and Safety, Workers Compensation, Workplace Training, WorkSafeBC

The deadline for compliance with WorkSafeBC’s bullying and harassment policies was last November 1, 2013.  We’d like to remind all BC employers that certain obligations under the policies require an annual review.

As we discussed in an earlier post, the policies set out nine requirements for employers to meet:

 

  1. Develop a policy statement about workplace bullying and harassment not being acceptable or tolerated.
  2. Take steps to prevent or minimize workplace bullying and harassment.
  3. Develop and implement procedures for reporting bullying and harassment, and specifically provide for reporting an incident when the alleged harasser is the employer, a superviosr
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

Reassignment of CN Employee a Constructive Dismissal

Posted in Constructive Dismissal, Damages, Litigation, Termination

A BC employee has successfully asserted a claim for constructive dismissal after being reassigned to a new position. Younger v. Canadian National Railway Company is a good reminder for employers that the courts may find there has been a constructive dismissal where an employee has been reassigned to a new position involving fewer responsibilities and a reduction in pay.

Younger had been a railway employee since graduating high school in 1973. He started working as a labourer and eventually advanced to a management position at CN. In 2004, CN assigned Younger to the position of Assistant Superintendent Mechanical (“ASM”), which … Continue Reading

Update on Overtime Class Actions in Canada

Ontario Court approves unique settlement of overtime class action

Posted in Employment Standards, Litigation, Wage and Hours

Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007. While overtime class action claims are still not possible in British Columbia (for the reasons discussed here), claims can balloon in other provinces when a representative plaintiff claims unpaid overtime for themselves and on behalf of colleagues.

On August 12, 2014, the Ontario Superior Court of Justice approved the settlement of one of these overtime class actions, Fulawka v. The Bank of Nova Scotia.  Our colleagues in Calgary have posted about this recent development … 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

SCC Decision Regarding Wal-Mart In Québec A Cautionary Case For All Canadian Unionized Employers

Posted in Labour Relations, Litigation, Termination, Unions

Our colleagues in Québec have produced a helpful summary of the recent Supreme Court of Canada decision involving a Wal-Mart in Jonquière, Québec, found to have breached its statutory duties during the freeze period following certification of a bargaining unit.

After negotiations for a collective agreement reached a standstill, the Wal-Mart in question decided to close its doors, for what it alleged to be legitimate business reasons. The arbitrator appointed to decide the Union’s grievance of the closure concluded that Wal-Mart’s decision to close the store was not in the course of the company’s ordinary business and therefore breached section … Continue Reading

The B.C. Civil Resolution Tribunal and Online dispute resolution: Will it work for your business?

Posted in Litigation

This fall, British Columbians will have a new option for resolving small claims disputes. The new Civil Resolution Tribunal will use a mix of online platforms, telephone, videoconferencing, mail and in some cases, in-person meetings, to resolve small claims matters under $25,000 and certain strata disputes. The Tribunal provides a multi-stage process designed to reach mutual agreement at negotiation and case management stages, with the power to make final decisions if resolution cannot be achieved. Nominal fees will be charged to enter the process, escalating as the involvement of the Tribunal escalates. The ultimate goal of this Tribunal is to … 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

“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

No Just Cause for Termination

Problems with clarity, training, consistency and investigation

Posted in Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy.  The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation:  Ogden v. CIBC.

Ms. Ogden immigrated to Canada in 2000.  She learned English and earned a business degree from Royal Roads University.  She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.

In the … Continue Reading

Other December Blog Posts

Non-employment issues of interest

Posted in Litigation, Privacy

As usual, our colleagues in other areas of practice are raising issues that may be of interest to employers in BC.  Here are three from this month:

BC’s Low Carbon Fuel Standard – This could affect your business in BC.

Foreign Judgment Enforcement in Canada – If your business is operating outside Canada, you need to understand the reach of the law of those other countries.

Privacy Law Changes in Europe – Might these ideas find their way to Canada?… Continue Reading

Pension Benefits Not Deductible from Wrongful Dismissal Damages

More like private insurance

Posted in Benefits, Compensation, Pensions, Damages, Litigation, Termination, Wrongful Dismissal

The Supreme Court of Canada has decided that pension benefits received by a dismissed employee are not to be deducted from an award of wrongful dismissal damages.  The decision in IBM Canada v. Waterman affirms an earlier ruling of the BC Court of Appeal which we discussed here.

Mr. Waterman was a long-service employee who was terminated with two months’ notice when he was 65.  He rejected a severance offer that would have provided him some wages and some pension.  He sued for wrongful dismissal but in the meantime began to get payments under the defined benefit pension plan … Continue Reading

Proposed Employment Law Reform in Ontario

Bill 146 Worth Watching

Posted in Employment Standards, Immigration, Investigations, Litigation, Occupational Health and Safety, Unions, Wage and Hours, Workers Compensation

The Ontario government has introduced a bill to make significant changes to employment law in that province.  Every BC employer with employees in Ontario should follow the course of these proposed changes.

As our colleagues in Ontario note, the Bill may not become law under the current government, but the proposals are wide-ranging and follow earlier Law Reform Commission recommendations.  See their analysis here.… Continue Reading

Pick of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Labour Relations, Litigation, Occupational Health and Safety, Privacy, Unions

Other McCarthy Tétrault blogs regularly touch on issues of importance for BC employers.  Here is a selection from the last month.

Managing the risks of holiday parties.  The office party season can be interesting.  Think about how you can manage the risks.

It’s flu season.   Tips for dealing with sickness in the workplace.

Trespassing on private property?  Maybe not.  Think picketing and leafleting.  A business’s property rights – and the ability to control trespassing – may not be as clear as you think, especially if the business invites the public on its property or operates in a publicly accessible area.… Continue Reading