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2009

Employee's actions do not support finding of unequivocal resignation or abandonment of employment

Jurisdiction: - British Columbia

The court in Koos v. A&A Customs Brokers, 2009 BCSC 563 stated that in the circumstances of this case, it could not find that a reasonable person would have regarded the actions of the plaintiff former employee as an unequivocal resignation or an abandonment of employment.

As such, the court concluded that the plaintiff had been wrongfully dismissed.

At the time of dismissal, the 40 year old plaintiff had 10 years of service, worked in a specialized position (customs compliance) and was earning approximately $50,000 per year. The court awarded her 10 months reasonable notice.

Ontario introduces Bill 168 which will require employers to take action to combat workplace violence and harassment

Jurisdiction: - Ontario

The Ontario government introduced Bill 168 on April 20, 2009. If passed, the Bill will amend the Ontario Occupational Health and Safety Act and set out requirements that employer's must follow to combat violence and certain forms of harassment in the workplace. You can read more about Bill 168 in an article written by McCarthy Tetrault that can be found here.

BC Supreme Court does not have jurisdiction to undertake, directly, judicial review of labour arbitrators' decisions

Jurisdiction: - British Columbia
Sector: - Forestry

A five judge panel of the BC Court of Appeal ruled in Northstar Lumber v. United Steelworkers of America, Local No. 1-424, 2009 BCCA 17, that the BC Supreme Court does not have jurisdiction to undertake, directly, the judicial review of labour arbitrators' decisions.

While the five justices were in agreement on the outcome, separate reasons were written by Justice Chiasson (concurred by Justice Lowry), Justice Saunders (concurred by Justice Levine) and Justice Hall (who concurred with both Justices Chiasson and Saunders).

Background

The underlying facts of the case concerned the dismissal of night watchman at the appellant company's mill. The night watchman was represented by the United Steelworkers. The matter ended up in arbitration pursuant to the collective agreement. The arbitrator agreed that the company had just cause, but substituted a five month suspension for the dismissal.  read more »

Tips on how to structure severance payments

Jurisdiction: - British Columbia

"Laid off? Get advice to make sure your severance goes to you, not the taxman" was the title of an article in today's Vancouver Sun.

In layman's language, the article lays out some of the simple steps that dismissed employees can take to minimize the income tax they pay on severance payments. 

"Ontario Employers Covered by New Child Pornography Reporting Law"

Jurisdiction: - Ontario

Davis LLP has published a briefing note - "Ontario Employers Covered by New Child Pornography Reporting Law  on Bill 37" - which will amend the Child and Family Services Act (Ontario) and will "impose a positive obligation on any person in Ontario,
including employers and employees, to report child pornography".

When does a cut in remuneration amount to constructive dismissal?

Jurisdiction: - British Columbia

At what point can a reduction of an employee's remuneration be considered a fundamental breach of the employment contract and the basis of a constructive dismissal?

In the recent decision of Pavlis v. HSBC Bank Canada, 2009 BCSC 498, the BC Supreme Court reviewed this issue, finding that in previous cases:     read more »

Court finds that Attendence Management Program does not amount to systemic discrimination

Jurisdiction: - British Columbia
Sector: - Transportation

In a decision issued a few weeks ago - Coast Mountain Bus v. CAW-Canada, 2009 BCSC 396 - the BC Supreme Court found that Coast Mountain Bus' Attendance Management Program (AMP) did not amount to systemic discrimination and that the monitoring of absences of employees who are regularly off work is a bona fide occupational requirement (BFOR). In doing so, the court overturned much of the BC Human Rights Tribunal's February 2008 decision on the matter.

Coast Mountain's predecessor company had first introduced the AMP in 1997. It applied to all of the company's employees, including its approximately 3,000 unionized transit operators.

The AMP had previously been the subject of a labour arbitration in 2000. Subsequent to the arbitrator's award - which allowed certain aspects of the grievance - the union filed a complaint with the BC Human Rights Tribunal (BCHRT).  read more »

An update on mandatory retirement

Jurisdiction: - British Columbia

Mandatory retirement was largely abolished in BC on January 1, 2008 when amendments to the BC Human Rights Code came into effect making it illegal to discriminate against employees who are age 65 or older.

The Business section of today's Vancouver Sun had a long article entitled "Life after death of mandatory retirement" that cites some interesting figures from BC Stats on this subject:

  • 10% of people age 65 or older in BC were still in the labour force (either working or looking for work) in February 2009;
  • in 2000, labour force participation for those aged 65 or older was only 5%; 
  • there was, however, no noticeable jump in labour force participation for these workers between December 2007 and January 2008, when the change came into effect. 

Not too many labour and employment law changes in NDP election platform

A couple of weeks back, I wrote that a new government in BC often means new labour and employment laws

With the election just over a month away, the BC NDP Party has now released its "Take back your BC" platform. 

There's actually very little of note in the document relating to labour and employment law issues, and nothing pertaining to the Labour Relations Code. And the labour and employment law promises that are included are, for the most part, short on specifics. Taken directly from the document, they are:  read more »

BC's Training Tax Credit for apprentice employees to increase effective July 1, 2009

Jurisdiction: - British Columbia

The BC Government announced today that it will be doubling the Training Tax Credit effective July 1, 2009. According to the media release:

The training tax credit program started in 2007 to encourage employers to take on apprentices. The program provides refundable income tax credits equal to 10 per cent of salary and wages paid up to $2,000, for each apprentice enrolled in any of the more than 100 apprentice programs that cover 140 careers. Effective July 1, employers will be eligible to claim up to $4,000 annually per employee.

The government expects to have 47,000 registered apprentices this year, triple the number from 2001. You can read the media release here.

Note: In a post nine days I ago, I summarized a wrongful dismissal case involving an employee who was working under an apprenticeship agreement pursuant to the BC Industry Training and Apprenticeship Act.

BC Court of Appeal further defines standard of review for arbitrations under the Canada Labour Code

Jurisdiction: - Canada/Federal
Sector: - Transportation

In a case handed down last week, the BC Court of Appeal further defined the standard of review that applies to a labour arbitrator's decision, in light of the Supreme Court of Canada's (SCC's) decision in Dunsmuir v. New Brunswick, 2008 SCC 9.

The employer in this case was a federally regulated trucking company, meaning that the Canada Labour Code was the governing legislation.

In response to a judicial reveiw application, the BC Supreme Court had set aside the arbitrator's decision as it related to the scope of the grievance, and remitted the matter back to the arbitrator.

On appeal by the employer, the BC Court of Appeal noted that in Dunsmuir the SCC had concluded that there were now only two standards of review: correctness and reasonableness. The SCC further noted that, based on the jurisprudence, the reasonableness standard applies where:  read more »

BC legislative session ends without labour mobility bill being passed

Jurisdiction: - British Columbia

In a post on March 11, 2009 I noted that the BC Government had introduced a labour mobility bill that would allow certified workers from other jurisdictions to practice their occupations in BC in accordance with Chapter Seven of the national Agreement on Internal Trade (AIT). The legislative session closed yesterday without the bill being passed and so, at least for now, this initiative is dead.  

"Fiduciary Duties: Obligations of Departing Employees"

Jurisdiction: - Alberta

Tina Giesbrecht, a lawyer at McCarthy Tetrault LLP in Calgary, has written a paper on, "Fiduciary Duties: Obligations of Departing Employees" (March 2009). The paper was prepared for the Legal Education Society of Alberta. 

BC extends student WorkSafeBC coverage to independent schools

Topics: - WorkSafeBC
Jurisdiction: - British Columbia

The BC Government announced today that students in independent schools "who participate in unpaid work experience opportunities to meet graduation requirements will now have their WorkSafeBC fees covered by the Province just like students in the public school system".

You can read the full mediea release here.

Securing company confidential information

There was an article in today's Globe and Mail about company confidential information being especially at risk right now because of the high number of layoffs coupled with our increased reliance on mobile technology (USB memory sticks, Blackberries, IPods, etc.). The article speaks to the US experience, but the same issues are at play in Canada. The "three steps" companies can take to minimize the chance of data theft is of particular value.  

Apprentice employee awarded $100,000 in punitive damages because employer covered up real reasons for dismissal

The decision in Marchen v. Dams Ford Lincoln Sales Ltd. 2009 BCSC 400, is noteworthy for four reasons:

  1. it involved an Apprenticeship Agreement made pursuant to the BC Industry Training and Apprenticeship Act:
  2. the dismissed employee was awarded $25,000 in consequential damages because of his apprentice status;
  3. the dismissed employee was awarded $100,000 in punitive damages; and
  4. the dismissed employee was awarded special costs.

Background

In November 2002, the plaintiff, a recent high school grad, entered into an apprenticeship agreement with the defendant car dealership (the "Employer") under the BC Industry Training and Apprenticeship Act. Pursuant to the terms of the Agreement and the provisions of the Act:  read more »

Supreme Court of Canada dismisses application for leave to appeal in negligent investigation case

Jurisdiction: - British Columbia

In Brian Fox and Board of Education of School District No. 62 (Sooke) v. Margaret Hildebrand, 2009 CanLII 13443 (S.C.C.), which was issued today, the Supreme Court of Canada dismissed with costs the application for leave from the judgment of the Court of Appeal for BC in 2008 BCCA 434 (November 5, 2008).

The BCCA had ruled in its decision, inter alia, that it was not "plain and obvious" that one employee did not owe another employee a duty of care in the manner in which the first employee investigated allegations of workplace misconduct against the second employee.