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2009

"Employee Super-Priority Under the WEPPA and the BIA: Comments on Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd."

Jurisdiction: - Canada/Federal
Sector: - Transportation

Vancouver lawyers Mary I.A. Buttery and Cindy Cheuk prepared a paper entitled "Employee Super-Priority Under the WEPPA and the BIA: Comments on Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (Re)" for the May 29, 2009 Bankruptcy and Insolvency CLE.

The paper sets out the implications of the 2008 Wage Earner Protection Program Act "on insolvency practice and provides a brief analysis of Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (Re), 2009 BCSC 41, the only reported decision regarding the WEPPA (as at the date of this paper) since the legislation came into force."

(Update: the BC Court of Appeal upheld the trial judge's decision in 2010 BCCA 223).

Evidence needed to establish that dismissed employee has not satisfied the duty to mitigate

Jurisdiction: - British Columbia

In Marshall v. Old Meets New Furniture Ltd. dba Stokes Furniture, 2009 BCSC 748, the BC Supreme Court discussed the evidence required to prove that an employee has failed to take reasonable steps to mitigate her loss in relation to a wrongful dismissal matter. The court also discussed the impact of a depressed economy on the notice period. 

Background

The employee was 46 years old and had seven years of service at the time her employment was terminated in June 2007. She had been manager of a retail furniture store, earning approximately $65,000 per year.

The employer alleged at trial that it had cause to terminate the employee based on poor job performance, dereliction of duty, and insubordination. However, at the time of dismissal it had provided the employee with seven weeks pay in lieu of notice pursuant to the Employment Standards Act and a positive letter of reference.

Notice Period  read more »

"Employer access to employee e-mails in Canada"

Dan Michaluk has written a paper on "Employer access to employee e-mails in Canada" (May 23, 2009). Mr. Michaluk is a lawyer at Hicks Morley in Ontario.

As set out in the introduction, the paper:

  1. identifies the specific interests an employer has in accessing information stored on its computer systems,
  2. identifies the bases for claims by employees that information stored on business computer systems is "private,"
  3. describes the "no expectation of privacy" approach adopted by Canadian labour arbitrators and courts,
  4. identifies cases that might demonstrate this approach is changing, and
  5. discusses what the jurisprudence should mean to employers.

Industry Training Authority launches campaign to encourage apprentices to catch up on technical in-class training

Jurisdiction: - British Columbia

In an entry in mid-May entitled "Economic recovery and the looming shortage of workers", I set out some of the ominous labour force statistics surrounding the retirement of the baby boomers.

Before that I had posted an entry on the BC Government's decision to double the Training Tax Credit effective July 1, 2009 in order to encourage employers to take on apprentices.

Now, an article in this week's edition (May 30 - June 5, 2009) of the Employment Paper (available in boxes on many corners) ties these two developments together.  read more »

"Privacy Issues in Pre-Employment Screening"

Jurisdiction: - British Columbia

Jennifer Wiegele at Harris & Company prepared a paper on, "Privacy Issues in Pre-Employment Screening" for the Continuing Legal Education Society of BC's May 2009 Employment Law Conference - 2009.

38 year-old restaurant manager awarded 15 months notice

Jurisdiction: - British Columbia

In Chapple v. Umberto Management Ltd., 2009 BCSC 724, the 38 year old plaintiff was a manager at Il Caminetto restaurant in Whistler with 13.5 years of service when her employment came to an end in January 2007. She was earning a base salary of approximately $50,000 per year, plus gratuities.

The employer argued that the plaintiff had been suspended and then failed to return to work. The court, however, found that her employment had been terminated. 

Notice Period

The court awarded the plaintiff 15 months notice, pointing to the following features which it stated led to a somewhat longer notice period than the plaintiff's length of service justified:  read more »

Senior employee's refusal to submit budget with head office's desired profit projections not cause for dismissal

Jurisdiction: - British Columbia

In Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681, the BC Supreme Court found that the employer did not have cause to dismiss a senior employee because of her refusal to prepare an annual budget that that included the employer's desired profit projections.

In doing so, the court reviewed the law on insubordination, and when it can amount to cause for dismissal in light of the "contextual approach" that was mandated by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38.

Background

The plaintiff was the General Manager of a hotel that was part of a luxury chain. At the time her employment was terminated she was 41, had 12 years of service and was earning approximately $150,000 per year (exclusive of bonuses and benefits).

The hotel chain's corporate office (the "employer") alleged that it had cause to dismiss the plaintiff for insubordination because:  read more »

HRSDC launches newsletter for federally regulated employers

Human Resources and Skills Development Canada (HRSDC) has started publishing an electronic newsletter - the Labour Focus Newsletter - that federally regulated employers will want to read.

Volume 1, Issue 1 of the newsletter was published last week and includes a bulletin from the Labour Program that discusses the H1N1 flu virus (the swine flu) and an employer's obligation under the Canada Labour Code, Part II to ensure the health and safety of their employees in the workplace.

As I noted in a post a few weeks ago, this article from the Vancouver Sun also contains advice for employers on how to respond to the virus and other outbreaks like it.

Economic recovery and the looming shortage of workers

The economic meltdown and the surging unemployment rate have muted, for the past several months, discussions about Canada's looming shortage of workers.

But with the "green shoots" of recovery starting to emerge - and the federal government's massive stimulus spending package soon to kick in - it may be time for employers to revisit Canada's workforce projections, and start examining the impact this will have on their future personnel needs.

The projections - set out in a story entitled "Oh Baby" in this month's edition of BC Business magazine - include the following:  read more »

Federal privacy commissioner issues fact sheet on "Privacy and Social Networking in the Workplace"

Jurisdiction: - Canada/Federal

The Office of the Privacy Commissioner of Canada, which oversees the federal Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act, has issued a fact sheet on "Privacy and Social Networking in the Workplace" The fact sheet contains guidance on what information should be included in a workplace policy that addresses this issue.

"CCAA Liquidations and Employment Issues"

Jurisdiction: - Canada/Federal

Ontario lawyer Linc Rogers presented a paper entitled  "CCAA Liquidations and Employment Issues" for an April 2009 Ontario Bar Association conference called Building Bridges: Discussing Labour Issues in Restructuring Proceedings.

Courts will not enforce fines that unions impose on members who cross picket lines

Jurisdiction: - Alberta - Ontario - Saskatchewan

By dismissing two leave to appeal applications on May 7, 2009 - one from Ontario and the other from Alberta - the Supreme Court of Canada has stipulated that the courts in Canada (save for in Saskatchewan) will not enforce fines that unions impose on their members who cross legal picket lines.

In the Ontario case  - Union of Taxation Employees Local 70030 v. Jeffrey Birch et al. - the employees worked for Canada Revenue Agency and were members of the Union of Taxation Employees Local 70030, a component of the Public Sector Alliance of Canada.

During a legal strike in 2004, the employees crossed the picket law on three days so that they could continue to work. Pursuant to the provisions in its constitution and by-laws, the union suspended the employees' union memberships for three years and also fined them each $476, which was equivalent to the total of the employees' gross salary for the three days.

The employees refused to pay their fines, resulting in the union filing a lawsuit against them in Small Claims Court.  The case was subsequently elevated to the Ontario Superior Court as a test case.  read more »

Determining whether a worker is an employee or an independent contractor

Jurisdiction: - British Columbia

In the recent decision in Smith v. Centra Windows Ltd., 2009 BCSC 606, the BC Supreme Court reviewed the legal principles that will be applied in determining whether a worker is an employee or an independent contractor. Specifically, the court noted:  read more »

Swine flu and and the obligation of employers to provide a safe workplace

Jurisdiction: - British Columbia

Given that the courts require employers to provide a safe workplace, how should employers respond to the swine flu outbreak? An article in yesterday's Vancouver Sun by a senior labour and employment lawyer provides some practical advice.  

Constructive dismissal not found where employee waited 2 years to accept employer's repudiation of the contract

Jurisdiction: - British Columbia
Sector: - Forestry

In ruling that the 59 year-old management employee in Robertson v. West Fraser Timber Co. Ltd., 2009 BCSC 602, was not constructivley dismissed the BC Supreme Court made the following findings:  read more »

"Downsizing and Sale of a Business Unit"

"Downsizing and Sale of a Business Unit" is the title of a paper prepared by a lawyer at Clark Wilson LLP in Vancouver.

It provides a comprehensive overview of issues to consider when terminating/transferring employees as part of a corporate transaction and ends with a useful summary of "what the vendor wants" and "what the purchaser wants" in order to minimize their respective exposure to claims by employees.