In Mackie v. West Coast Engineering Group Ltd., 2009 BCSC 1775, the 48 year-old middle manager with 21 months service and an annual base salary of $57,500, was awarded a notice period of nine months.
The court noted that the law is clear that a dismissed employee cannot be compensated in damages for the loss of a job or for the pain and distress that follows as a result of the dismissal. The court also stated that the "unique" factor relating to the impact of the dismissal on the employee's family was not one to be given much weight in determining the length of the notice period.
That said, the manner in which the employee was dismissed and the impact it had on him and his family were undoubtedly what led to the court to award a notice period of nine months, which was at the high end of what the employee was seeking. Specifically: read more »
Following the lead of seven other provinces - including Ontario and Quebec - BC is introducing a ban on the use of electronic devices while driving effective January 1, 2010.
My former colleagues at Lawson Lundell LLP have prepared a bulletin that provides an overview of the rules and outlines the steps that employers should take in response to the ban. The bulletin can be read here.
The BC Human Resources Management Association (HRMA) is hosting a "Legal Symposium: Current HR Challenges - A Legal Perspective". The one day conference will be held in Vancouver on January 20, 2010 and in Victoria on January 27, 2010. More information can be found here.
A sincere thanks to Dr. David Doorey for nominating my labour and employment blog for a 2009 CLawBie.
The CLawBies, or Canadian Law Blog Awards, were created by Steve Matthews in 2006 in order to recognize great blogs published by the Canadian legal industry. They are awarded annually on December 31. Steve is the founder of Stem Legal, a company that assists law firms in building their online presence.
Dr. Doorey is a professor of labour and employment law in the School of Human Resource Management at Toronto's York University. His blog - Doorey's Workplace Law Blog - won two CLawBies last year, one for "Best Law Professor Blog" and the other for "Best New Law Blog". read more »
Sexual harassment allegations not supported but abusive behaviour by manager led to constructive dismissal
In Cooke v. HTS Engineering Ltd., 2009 CanLII 73907 (O.N.S.C.), the court found that the former employee's allegations of sexual harassment were not supported, but that the manager's abusive behaviour supported a finding of constructive dismissal.
By way of contrast, in a recent decision out of Alberta - Pawlett v. Dominion Protection Services Ltd., 2008 ABCA 369 - the Alberta Court of Appeal upheld the trial judge's decision that sexual harassment by the boss led to a constructive dismissal.
In Stastny v. Dependable Turbines Ltd. 2009 BCSC 1648, the court addressed the notice period, a claim for unpaid overtime and a claim for aggravated or punitive damages.
The 51 year old machinist with 20 years service was dismissed without cause. The court awarded him a notice period of 15 months. The fact that the employee had been laid off and rehired on several occasions did not, the court concluded, effect the duration of his employment for the purposes of calculating his notice period.
The employee had regularly worked more than 40 years a week but had not received overtime pay. This was confirmed by time sheets produced by the employer, which showed that the employee only received his regular wage for overtime hours worked. The employer argued that it had an agreement with the employee to this effect. read more »
US Supreme Court to decide if privacy rights covered worker's personal text message on employer's equipment
You can read about the case in the NY Times article ("Supreme Court Takes Texting Case", Dec. 14, 2009) found here.
Curious about how many jobs have been created in BC and Canada as a result of Vancouver hosting the 2010 Olympic Winter Games?
This September 2009 report (The Games effect) prepared by accounting firm PricewaterHouseCoopers LLP concluded that for the period from 2003 to 2008:
"The 2010 Winter Games are estimated to have produced up to 20,780 jobs in BC, approximately 10,000 (direct and indirect) of which were generated as a result of venue construction activity. A further 1,750 jobs were created across Canada through inter-provincal trade.
The report was commissioned by the BC and federal governments. Their November 5, 2009 news release about the report can be read here.
I attended a seminar today on "Addictions in the Workplace" that was put on by the law firm Fasken Martineau. Faskens' labour and employment lawyer Patricia Janzen presented along with Dr. Ray Baker, an addictions specialist who has a company called HealthQuest.
The seminar was one in a series that Faskens is offering to its clients. They are aimed primarily at human resource professionals, but I wanted to hear Dr. Baker speak and obtain a better sense of the services he offers.
As Ms. Janzen noted in the seminar, the law relating to how employers in BC must deal with addicted employees is not entirely clear, given the decisions by the BC Court of Appeal in: read more »
In Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, the majority of the Supreme Court of Canada ruled that a national freight forwarder is provincially regulated.
- A summary of the case by Alberta firm McLennan Ross is here: "Supreme Court Upholds Provincial Powers Over Labour Relations" (January 5, 2010).
- A summary of the case by Fraser Milner Casgrain can be found in their Spring 2010 newsletter: "Consolidated Fastfrate: How a Recent Supreme Court of Canada Decision Will Assist Employers With Their National Labour Strategies".
Two lawyers at Filion Wakely Thorup Angeletti LLP in Toronto have co-authored a paper entitled "Is Wallace Dead? The Keays to the Mystery Damages in Wrongful Dismissal Revisited" (2009). It addresses the following cases:
- Vorvis v. Insurance Corp. of British Columbia,
- Wallace, v. United Grain Growers Ltd.,
- Honda Canada Inc. v. Keays, and
- the Ontario Superior Court of Justice's decision in Piresferreira v. Ayotte and Bell Mobility Inc.
Alberta organization collecting more information than necessary by asking about pardoned convictions on application forms
In a recent order (Order P2009 - 004, November 9, 2009), the Alberta Privacy Commissioner's Office has ruled that the Real Estate Council of Alberta was collecting more personal information than necessary by asking about pardoned convictions on its brokerage licence application forms.
The Canadian Human Rights Commission announced this week that it has revised its policy on drug and alcohol testing. The revised policy can be read here.
Double costs awarded against employer for failing to accept employee's settlement offers in wrongful dismissal case
In Hutson v. Michaels of Canada, ULC, 2009 BCSC 1587, the court awarded the dismissed employee "double" court costs because of the employer's failure to accept the employee's pre-trial settlement offers.
The decision dealing with the merits of the wrongful dismissal lawsuit was delivered orally by the BC Supreme Court on September 18, 2009. This decision does not appear to be reported. The decision dealing with the costs award is reported and offers some information about the merits of the lawsuit.
The employee was dismissed for just cause on August 29, 2005 because of an altercation with/alleged assault on another employee. He had approximately 12 years of service.
In October 2005, the employee (through his lawyer) offered to settle the matter for $100,000. The employer did not accept the offer.
In January 2006, the employee commenced his lawsuit. read more »
Fraser Milner Casgrain LLP has published "The Wrongful Dismissal Manual" (October 2009), which is "designed to provide employers with guidance on the general statutoryand common law principles applicable whenever an employee's employment is terminated in Canada's four main business jurisdictions: British Columbia, Alberta, Ontario and Quebec."