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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

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

Posted in Legislative Changes, Litigation
Monique Ronning

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 from a smartphone, tablet, or computer. CRT decisions are rendered by tribunal members, and leave for appeal can be filed with the BC Supreme Court.

In addition, the Provincial Court’s small claims jurisdiction will increase from $25,000 to $35,000. The Provincial Court in Vancouver and Richmond will also run one-hour simplified trials for cases with a monetary value of $5,001 to $10,000, which will be heard by Justice of the Peace Adjudicators. We note that once these change takes effect, a plaintiff who filed a Notice of Claim in Provincial Court prior to June 1, 2017, is permitted to amend their Notice of Claim to increase the amount claimed to up to $35,000, not including interest and expenses.

For more information on these changes, visit the Provincial Court’s information page or the CRT webpage.

Owner/Operator Labour Market Impact Assessment and its importance for Permanent Residence applications in 2017

Posted in Human Capital, Immigration, Legislative Requirements, Temporary Foreign Worker Program
Christopher McHardy

Any Canadian employer wishing to employ a temporary foreign worker (“TFW”) in Canada must first obtain authorization from the government, which is typically obtained by proving that the hiring of a TFW will not negatively impact the Canadian labour market.  In most cases, the Canadian employer must apply to Employment and Social Development Canada, also known as Service Canada, for approval of the Labour Market Impact Assessment (“LMIA”), previously called a Labour Market Opinion or LMO.  A LMIA is a very detailed application process that is subject to a high level of review, and must be completed without error.

Most LMIA applications require the employer to advertise the role to Canadian workers. However, certain LMIA applications are exempt from the advertising requirements.  One example is the Owner/Operator LMIA.  This category is for foreign nationals who wish to establish or purchase a business in Canada, and want to work in that business in a high-skilled position, often with the aim of immigrating permanently.  To qualify as an owner/operator, a foreign national must:

  • demonstrate a level of controlling interest in the business, i.e. a sole or majority shareholder;
  • demonstrate that his or her temporary entry to Canada will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and/or permanent residents; and
  • not be in a position to be dismissed, i.e. is not in an employment position where her or she is answerable to someone more senior.

For Owner/Operator LMIAs, no advertising or recruitment is required. The key requirement is that the foreign national owns a business in Canada in which he or she owns a controlling interest of more than 50%.  Other requirements include:

  1. a business plan that shows how the owner/operator will fund the business and create or maintain employment, and contains at least a rudimentary financial plan and timeline of events;
  2. active management of the business (i.e. it cannot be a passive investment) in a position that accords with the foreign national’s qualifications and experience with a wage equal to or greater than the median wage requirements for the position; and
  3. and employing at least one Canadian or permanent resident (ideally in the first year as described in the business plan).

This option is available anywhere in Canada.

Once an owner/operator receives a positive LMIA, he or she can obtain a work permit from Immigration, Refugees and Citizenship Canada equal to the validity of the LMIA (usually up to 2 years).  Once a work permit is obtained, the owner/operator will, in most cases, be in a position to apply for permanent residence through the Express Entry program.

It is worth noting that the Express Entry Comprehensive Ranking System (“CRS”) has been modified and since November 19, 2016, CRS points awarded for job offers (including those based on Owner/Operator LMIAs) have been reduced from 600 points to either 200 points for senior managerial positions, or to 50 points.  This means that an Owner/Operator LMIA-based work permit does not automatically guarantee an Invitation To Apply (ITA) for Permanent Residence, as it inevitably did prior to November, 2016 (although the points will still bolster the applicant’s Express Entry application).  It also means that Owner/Operator LMIAs for senior management positions generate a substantially better chance for that person to permanently immigrate to Canada under the Federal Skilled Worker Program.

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
Ryley Mennie

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 and did not involve guarantees of repeat business. Following Consbec’s expansion into western Canada in 1999, Mr. Walker took a position as manager at Consbec’s office in Kamloops, BC. Mr. Walker never signed any employment agreement or restrictive covenants with Consbec.

In 2002, Mr. Walker unexpectedly resigned from Consbec, without providing any advance notice. Consbec dispatched two employees to respond to Mr. Walker’s resignation, and discovered evidence that Mr. Walker had been planning to establish a competing business. In the four years following his resignation, Mr. Walker did in fact establish a competing business and obtained a number of blasting and drilling contracts with entities that Consbec considered its clients.

Consbec’s Lawsuit

Consbec sued Mr. Walker, claiming he breached his employment contract, as well as his fiduciary and common law obligations, when he resigned without notice and then established a competing business.  In the trial decision, the court found that Mr. Walker was not a fiduciary, as, among other things:

[182]     Peter made no corporate decisions, nor was he asked to participate in corporate meetings. Peter was not party to corporate decisions or policy making policy for Consbec, hiring and firing employees of Consbec, determining salaries or bonuses, or determining non-union wages in his division. He received no company financial records or financial statements, and he was not entitled to do so. On behalf of Consbec, Peter could not sign cheques. He could not direct the payment of accounts electronically, or move and transfer Consbec’s money from its bank accounts. Peter could not influence the payment of accounts or the transfer of funds. Nor could he direct Consbec employees, such as Mr. Sawdon, to make payments or transfer funds. Peter had no corporate credit card.

Rather, the trial judge found that Mr. Walker could best be described as an “estimator”, even though Consbec described him as a manager.  The trial judge also found that there was no evidence that Mr. Walker had competed unfairly during his employment or made any improper use of Consbec’s confidential information following his employment. As he was not a fiduciary, did not breach his common law duties of loyalty or confidence and was not subject to any restrictive covenant agreements, the court found there was no limitation on Mr. Walker’s right to quit his employment and immediately compete with Consbec.

The court did find that Mr. Walker breached his notice obligations, noting the “purpose of notice is to provide time for the employer to make arrangements to have the work that the departing employee performed looked after by others, or to find another employee.”  The court held the length of resignation notice is to be determined considering the employee’s “responsibilities, length of service, salary, and the time it would reasonably take the employer to replace the employee” or otherwise address the vacancy. However, the court declined to determine Mr. Walker’s notice period, finding it was too speculative. Instead, the court concluded that Mr. Walker should pay damages based on Consbec’s lost opportunity to make a smooth transition, and awarded Consbec $56,116.11 – the total costs it had incurred in sending its two employees to Kamloops to deal with the fallout of Mr. Walker’s departure. Both parties appealed the court’s decision.

The Court of Appeal’s Decision

In the BC Court of Appeal’s decision, the court found the judge’s failure to assess the period of notice that Mr. Walker should have provided Consbec to be an error. Without undertaking this fundamental step, the trial judge was unable to properly undertake the second step of assessing what damages Consbec suffered during the notice period. Agreeing with the trial judge that Mr. Walker was a “manager” in name only, the Court of Appeal found that he should have provided one month of notice of resignation to Consbec.

On the second question, the Court of Appeal noted “the measure of damages is not the cost to Consbec as a result of Peter leaving the company, but the cost to Consbec as a result of Peter’s failure to give notice.”  The court found that a number of expenses underlying the trial judge’s damage award would have been incurred regardless of whether Mr. Walker provided proper notice and that the trial judge had not accounted for money Consbec saved in not having to pay Mr. Walker’s salary during the notice period. After undertaking further analysis of Consbec’s losses during the notice period, the Court of Appeal determined that Consbec had not, in fact, sustained any measure of damages, and set aside the damage award in its entirety.

Conclusion

This case is a good reminder for BC employers regarding employee status, resignation and post-employment competition:

  1. A “manager” in name only will not suffice to establish heightened duties, including fiduciary duties, if the substance of the employee’s role does not support a heightened or fiduciary relationship;
  2. Although there is no statutory obligation in BC for employees to provide a minimum amount of notice of resignation, employees are nonetheless under a common law obligation to provide their employer sufficient notice to adjust to or mitigate their departure. For employees in key or more senior positions, the notice period will be longer;
  3. When an employee breaches the obligation to provide reasonable notice of resignation, an employer must prove the damages it suffered as a result of the failure to provide notice, not as a result of the employee’s resignation;
  4. Even if an employee is a fiduciary, reasonable notice of resignation and a fiduciary duty may not be sufficient to adequately protect your business, so restrictive covenants should be considered (with appropriate advice to ensure enforceability); and
  5. Restrictive covenants should be considered for any employees who could relatively easily compete with and potentially harm your business’ interests, whether or not the employee is a fiduciary or manager.

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
Donovan Plomp

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 about the Clinic’s collection of personal information through video and audio surveillance. The Clinic used surveillance cameras on a 24/7 basis in its lobby, hallways, back exists, and fitness room to collect personal images and audio of patients, employees, contractors, and others.

The Commissioner concluded that the Clinic’s use of video and audio surveillance was excessive in the circumstances. The Clinic could not provide sufficient evidence of a safety or security problem or other significant issues to justify the use of surveillance, and did not make any attempt to use less-intrusive means to achieve to achieve the Clinics goals of security, liability protection and client protection in the fitness room, and monitoring staff. Further, the Clinic did not obtain the appropriate consents to collect the personal information, did not have the appropriate mechanisms and processes in place to store, secure and dispose of the personal information collected, and did not have an effective Privacy Management Program in place.

The Privacy Audit and Compliance Report covers:

  • the methodology used by OIPC to conduct the investigation, which included an on-site inspection of the clinic, a review of the Clinic’s policies, practices, and training, and interviews with key Clinic staff (page 8);
  • the information covered by OIPC in an interview of the Clinic’s owner (page 9);
  • the applicable legislation (pages 9-10);
  • the Commissioner’s findings (pages 12-33); and
  • 12 recommended actions for the Clinic to take that, when implemented, will help ensure that the Clinic is in compliance with its obligations under BC’s Personal Information Protection Act for protecting personal information (pages 35-37).

Of particular note to employers using video surveillance or considering using such surveillance is the Commissioner’s guidance regarding the collection of personal information by video surveillance at pages 10-11. The full report is available here.

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
Monique Ronning

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 will launch an online evaluation tool that employers and Committees may use to comply with this requirement.
  2. Mandatory minimum training and education for new Committee members and worker health and safety representatives. In particular, within six months of being selected, Committee members must undergo at least eight hours of training, and worker representatives must undergo at least four hours of training. Sections 3.27(4) and (5) of the Regulation sets out the topics that must be covered in training. Sections 3.27(6) and (7) of the Regulation provide for an exception to the training requirement for Committee members or worker representatives who: served in such roles in the two years prior to being selected for their current post; and received at least the minimum training now required under the Regulation.

The amendments also clarify the meaning of “participation” in section 174 of the Workers Compensation Act by providing three additional examples of what participation by worker and employer representatives in an employer incident investigation includes.

Visit WorkSafeBC’s webpage regarding Joint Health and Safety Committee Related Occupational Health and Safety Regulation (OHSR) Changes for a full copy of the approved amendments and explanatory notes for each amendment.

BC Supreme Court clarifies law regarding employment probation

Posted in Employer Obligations, Employment Standards, Termination
Laura DeVries

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 presumption of reasonable notice owed to dismissed employees.  The Court rejected this argument, concluding that the meaning of the term “probation” is well understood and noting that Mr. Ly had not questioned or attempted to negotiate the Probation Clause (as he had done, for example, with respect to a different clause in the agreement).

Mr. Ly further argued that the six-month Probation Clause was unenforceable because its six-month duration fell afoul of section 63(1) of the Employment Standards Act (the “ESA”), which requires employers to provide employees who have served at least three months of employment with a minimum of one week’s notice or pay in lieu.

Decision

The Court acknowledged that the law regarding whether employers can require probationary periods longer than three months was somewhat unclear. In addressing this question, it affirmed that the common law presumption of reasonable notice may be rebutted by a contractually agreed-upon probation period, so that an employer may dismiss an employee without reasonable notice during such period.  It also affirmed that the minimum notice periods set out in the ESA cannot be contracted out of or circumvented.  Thus, after an employee passes the three-month mark, he is entitled to the minimum one week’s notice provided in the ESA, even if the parties agreed to a six-month probation period.

The Court also summarized certain key principles regarding probation periods, which it defined as follows:

A probationary term of employment is best understood as part of a contract of employment where: a) the employee is held to the requirement that for a specific period of time that employee must demonstrate certain suitability requirements set by the employer; and b) the employee may be dismissed without reasonable notice (subject to statutory minimums) if he or she does not meet the suitability requirements.  If the employee meets the suitability requirements then, after that period of probationary assessment, the employee’s contract continues as a contract of employment wherein the requirements of just cause and reasonable notice apply. [emphasis added]

Although an employer is not required to give reasons for dismissing a probationary employee, the Court will review the employer’s conduct in assessing the employee, considering factors such as: whether the employee was made aware of the criteria by which he would be assessed; whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and whether the employer acted fairly and with reasonable diligence in assessing suitability.

In Mr. Ly’s case, the Court concluded that the employer had not sufficiently communicated to Mr. Ly the standards by which he would be assessed, had not given him a reasonable opportunity to demonstrate his suitability, and had not met the required standard of good faith in assessing him. Consequently, the Court found that the employer wrongfully dismissed Mr. Ly. The Court awarded Mr. Ly pay in lieu of three months’ reasonable notice because his contract did not specify a specific notice period.

Key Takeaways

When contracting for probation periods greater than three-months, it is important to keep the following in mind. Under the ESA, employees are entitled to notice of termination of employment upon completing three months of continuous employment, even if the probation period extends beyond three months. If the contract does not contain an express termination provision equal to or greater than the ESA minimum, then the employee will be entitled to reasonable notice at common law, which can be a costly severance package for such a short-service employee (as in Mr. Ly’s case).

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

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

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 have a drug identification number (“DIN”) because it was not approved by Health Canada, and (ii) Mr. Skinner’s medical expenses ought to be covered by a provincial medicare plan because his disabilities resulted from a compensable workplace accident. Mr. Skinner filed a complaint under the Nova Scotia Human Rights Act alleging discrimination in the provision of services on account of physical and mental disability.

In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, the Nova Scotia Human Rights Commission Board found the Trustees’ justifications for denying Mr. Skinner’s request for coverage to be “wholly inadequate.” The Plan provided coverage for “reasonable and customary charges incurred for medically necessary drugs and medicines” obtained legally by prescription, and did not require a DIN as a condition of coverage.

The Board determined the Trustees’ decision to deny Mr. Skinner’s request for coverage was discriminatory under the Act. The evidence demonstrated that medical marijuana was medically necessary in Mr. Skinner’s case, and the terms of the Plan did not exclude medical marijuana coverage. The Trustees’ denial of Mr. Skinner’s request was inconsistent with the purposes of the Plan, and had the adverse effect of depriving Mr. Skinner of comparable coverage provided to other beneficiaries. Further, the Trustees provided no evidence of undue hardship. The Board noted that the Trustees provided no evidence that granting an employee’s request for coverage of medical marijuana on a case-by-case basis (or any other basis) would cause an increase in premiums or threaten the financial viability of the Plan. As a result, the Board ordered (as an interim measure) that the Trustees immediately commence providing coverage for medical marijuana to the Complainant.

Given the exponential increase in legal marijuana prescriptions in Canada, and the media attention garnered by decisions like Skinner, it is likely that both employers and benefit plan administrators will see a growing number of requests for coverage for prescription marijuana. While the Skinner decision does not mean that medical marijuana must be covered under every private benefit plan, it does demonstrate the necessity of considering human rights obligations when deciding how to respond to a request for such coverage. As stated by the Board in Skinner:

[1]        Employee benefit plans are not required to cover the sun, moon, and the stars. However, where an employee with a disability requests coverage that is consistent with the purpose of a plan and comparable to coverage provided to other beneficiaries, more is required from a plan administrator than simply an assertion that its hands are tied by its policy and forms. In the absence of evidence that extending coverage would unreasonably alter the plan premiums or risk its financial sustainability, non-coverage of a medically-necessary drug may amount to discrimination…

BC revamps Provincial Nominee Program with enactment of Provincial Immigration Programs Act and Regulation

Posted in Human Capital, Immigration, Legislative Changes
Christopher McHardy

The Provincial Immigration Programs Act, S.B.C. 2015, c. 37 (“PIPA“) and the Provincial Immigration Programs Regulation (“Regulation“) came into effect on February 1, 2017.

PIPA strengthens the administration of the Province’s immigration programs and designates decision-making authority for the British Columbia Provincial Nominee Program (“PNP“) to the director, provincial immigration programs.

The Regulation governs the delivery of the PNP, which is British Columbia’s only direct economic immigration tool. Specifically, the Regulation:

  1. grants authority to collect PNP fees,
  2. sets out the amount of PNP fees,
  3. allows for inspections to be conducted to monitor compliance with program requirements, and
  4. implements a process for reviewing refused applications. To read the provincial government’s overview of the changes to the PNP as a result of PIPA and its Regulation, click here.

Prior to PIPA, the PNP was not governed by a specific legislation; instead, it was a program policy of the provincial government, and the only publicly accessible information about the program (subject to occasional changes) was on the PNP website. The new PIPA and its Regulation brings greater certainty and transparency to the BC PNP process. The PNP has been, and continues to be, one of the better programs for the selection and nomination of foreign workers and international graduates with the skills, education and/or experience required for high-demand occupations and entrepreneurial ventures. The PNP is based on a point system, with the provincial government issuing Invitations To Apply for provincial nomination to the highest-ranking registrants following periodic draws from the pool of provincial candidates. At the time of writing, there have been three draws from the pool of candidates (February 3, 17 and 23, 2017).

To read the provincial government’s overview of the changes to the PNP as a result of PIPA and its Regulations, click here.

 

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

Posted in Employer Obligations, Employment Standards, Wage and Hours
Donovan Plomp

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 release here.

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

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

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 of VCH and member of the Health Sciences Union. Mr. Sebastian filed a human rights complaint alleging that VCH discriminated against him when it allegedly failed to accommodate his disability. Mr. Sebastian had also filed numerous grievances against VCH which included the same allegations. The Tribunal deferred Mr. Sebastian’s human rights complaint for a period of time pending completion of the grievance proceedings.

At the hearing of the grievances, VCH and the Union agreed to resolve the grievances, and the arbitrator set out the terms of settlement in a “Consent Award”. Among other things, VCH and the Union agreed to a specific return to work plan and lost wages for Mr. Sebastian, though the parties were not able to resolve the human rights complaint within the grievance proceedings.

With the grievances resolved, VCH made a formal “with prejudice” offer to Mr. Sebastian in an attempt to settle his human rights complaint. VCH’s settlement offer included paying a further $15,000 as damages to Mr. Sebastian for any injury to dignity that he may have suffered and providing its recognition of how difficult and trying the accommodation experience had been for him, without admitting any liability. When Mr. Sebastian refused the offer, VCH applied under section 27(1)(d)(ii) of the Code to have his complaint dismissed.

Decision

Under section 27(1)(d)(ii) of the Code, the Tribunal can exercise its discretion to dismiss a complaint where it does not further the purposes of the Code due to the presence of a settlement offer. To be successful, the settlement offer must:

  1. Be “with prejudice” so that it can be considered by the Tribunal;
  2. Fully address the allegations and available remedies, both monetary and non-monetary;
  3. Adequately remedy the alleged violation and be consistent with the types of orders the Tribunal might make if the complaint was successful;
  4. (If applicable) provide a monetary award within the reasonable range that the Tribunal might award if the complaint were found to be justified; and
  5. Remain open for the complainant’s acceptance even if rejected and even if the Tribunal were to dismiss the application to dismiss.

The Tribunal reviewed the evidence and concluded that:

  • the complaint addressed the same subject matters as the grievances, which were resolved, and “the Tribunal is governed by principles that prevent re-litigation of decided issues”;
  • despite stating his opposition to the terms of the Consent Award, Mr. Sebastian: i) actively participated in the grievance proceedings and was aware that the Union intended to settle the accommodation disputes by way of the Consent Award, ii) enjoyed the financial “fruits” of the Consent Award, and iii) did not take any action against the Union for representing him in the Consent Award negotiations;
  • the Consent Award was intended to address all of Mr. Sebastian’s claims relating to the accommodation of his disability and provided for clear financial compensation for lost wages; and
  • Mr. Sebastian was unlikely to receive an injury to dignity award greater than $15,000.

In light of the above, the Tribunal dismissed the complaint as it would not further the purposes of the Code to permit it to proceed to a hearing. The Tribunal considered that Mr. Sebastian seemed content to take what he could from the Consent Award, and then sought to improve on his position by pursuing a complaint based on substantively the same issues. In dismissing Mr. Sebastian’s complaint, the Tribunal highlighted that “there is a strong public policy interest in encouraging parties to resolve their disputes on a voluntary, consensual basis” (at para. 169).

Conclusion

Given the cost of proceeding to a hearing of a complaint, particularly when faced with a particularly litigious complainant, this decision serves as a good reminder to respondents that, in appropriate circumstances, a reasonable offer to settle can provide a useful and effective tool to have a complaint dismissed. It is also a good decision for unionized employers who, in good faith, resolve workplace grievances with the full participation and consent of the union, ensuring that employees cannot take the benefits of that consensual resolution and then shop around for another forum to try and improve their position, based on the same dispute.