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.
The BC Court of Appeal has overturned a lower court decision that held that a public school teacher's defamation action against his principal and school board was a matter that arose under the collective agreement and was thus not within in the court's jurisdiction.
The teacher, while off on a medical leave, attended the school and caused a disturbance that resulted in criminal charges and disciplinary action by the BC College of Teachers. (The College's disciplinary action was subsequently overturned by the court on the basis that the teacher had been incompetent due to his medical condition).
As part of the same court action, the teacher brought the defamation action in relation to comments the principal had allegedly made to a police officer. read more »
BC Human Rights Tribunal does not have jurisdiction to deal with matter already decided by the WCB Review Divsion
The decision in Workers Compensation Board v. British Columbia (Human Rights Tribunal) 2009 BCSC 377, which was released today, was concerned with whether the BC Human Rights Tribunal (BCHRT) had the jurisdiction to reconsider the same complaints that had already been dealt with by the Review Division of the Workers Compensation Board ("WCB").
Three complainants who suffer from chronic pain due to work related injuries applied to the Review Division, the WCB's internal appeal body, for a finding that the WCB's chronic pain policy constituted discrimination under section 8 of the BC Human Rights Code (the "Code").
Decision of the Review Division
The Review Division Officer, who had 34 years of experience and a Masters of Law degree, found that the policy did not contravene the Code, or alternatively if it did, there was a bona fide and reasonable justification. read more »
Statistics Canada released the January 2009 Employment Insurance figures today. According to the agency, the number of people receiving regular EI benefits across Canada increased by 23,700 (4.4%) from December 2008. The total number of people receiving regular benefits in Canada in Janaury was 560,400.
As it relates to BC:
- there were 56,100 beneficiaries in January, up 4,630 (9.0%) from December 2008.
- compared to January 2008, there was an increase of 18,120 (47.7%) beneficiaries.
As it relates to Vancouver:
- the number of beneficiaries in January 2009 was 26,020, up from 16,790 in January 2008. This is an increase of 9,230 or 55.0%.
With the May 12, 2009 provincial election fast approaching, a new Ipsos Reid poll is showing that the BC Liberals have the support of 46% of voters with the BC NDP Party sitting at 35%.
Given the polarized nature of BC politics, and the implications this can have for labour and employment laws, it is timely to look back at the workplace related promises that were in the "New Era" platform that the BC Liberals ran on in 2001, when they were first elected government. Many of these promises were enacted into law in the 2002 legislative session.
Labour Relations Code read more »
In a post last week regarding the possible revival of the labour movement in the US, I noted that the level of unionization in that country had shrunk from 35% in the mid-1950s to about 8% today.
What is the currrent level of unionization in BC and across Canada? In the Business Council of British Columbia's most recent Industrial Relations Bulletin on this issue (September 23, 2008), it states that during the first half of 2008: read more »
The Vancouver Sun reported yesterday that Unite Here Local 40 and Aramark Sports and Entertainment reached a tentative collective agreement on March 20, 2009 for the food and beverage workers at GM Place.
According to the article, the tentative agreement, which is retroactive to December 11, 2008 and has a three year term, includes the following:
- wage increases of 17 to 22% for non-tipped workers;
- wage increases for tipped workers;
- options for improving medical coverage; and
- guarantees that workers are going to get the opportunity to work during the Olympics.
In the recent decision of Burnett v. Rexel Canada Electrical Inc. 2009 BCSC 314, the court discussed the law on settlement agreements in wrongful dismissal cases.
The underlying facts in the case were that the employer had, as a condition of the agreement, required that the plaintiff/former employee sign a statutory declaration that included the following statements:
- I have not received an offer of employment; and
- I do not have any current expectation of receiving an offer of employment.
Within hours of signing the declaration, however, the plaintiff recieved an unexpected offer of employment. The employer was suspicious of the timing and refused to pay out the settlment funds. read more »
Contextual factors to consider when assessing whether employer has just cause to dismiss an employee
A new test for dismissing an employee for just cause was established by the Supreme Court of Canada in McKinley v B.C Tel, 2001 SCC 38. In that case the Court stated that, among other things, employers must undertake a contextual analysis of ths misconduct.
In a recent case - Corso v. Nebs Business Products Limited,  O.J. No. 1092
(Ont.S.C.J.) - the Ontario Superior Court set out a useful checklist of the contextual factors that should be considered.
The case concerned the dismissal of an employee who, in the face of a detailed Conflict of Interest policy, covertly developed a computer program product that would be detrimental to the employer's core business.
The checklist is as follows: read more »
The BC Nurses Union and the Nurses' Bargaining Association have reached a tentative agreement with the Ministry of Health Services, health authorities and HEABC to extend the current Provincial Collective Agreement for an additional 24 months. The BCNU has scheduled a ratification vote for April 8, 2009.
You can read more about the tentative agreement here.
There is an interesting article in this week's The Economist (March 14-20, 2009) about the possible revival of the labour movement in the United States.
The article, entitled "In from the cold?", notes that current political/legal events in the US coupled with the change in attitudes and economic realties brought on by the recession, may provide an opportunity for unions to increase memberships and influence after decades of decline that have seen the percentage of the American workforce that is unionized shrink from 35% in the mid-1950s to about 8% today.
The positive developments on the political/legal front noted in the article include the following: read more »
"Accounting for Pensions: Addressing Employees’ Pension Entitlements in Wrongful Dismissal Litigation & Settlement Negotiations"
Mitch Frazer and Tara Sastri from Torys LLP presented a paper on "Accounting for Pensions: Addressing Employees' Pension Entitlements in Wrongful Dismissal Litigation and Settlement Negotiations" at the Ontario Bar Association CLE - 8th Annual Current Issues in Employment Law (February 25, 2009).
The Precis of the paper is as follows: read more »
Donna Seale is a lawyer in Manitoba with her own consulting company, Donna M. Seale Consulting Services. She also has a blog ("Human Rights in the Workplace") and recently wrote an informative three-part series on the legal implications of using social networking sites and internet searches in the hiring process. Part One can be read here.
Mr. Zaitsoff was dismissed without cause from his position as a Production Manager at a pulp mill in Castelgar. He was 46 years old and had worked at the mill for 19 years. He had four people reporting directly to him and 215 indirectly reporting. He earned $142,000 per year.
In relation to the fourth "Ansari" principle, the plaintiff pointed to the lack of available jobs in the pulp and paper industry, particularly in the current economic downturn.
In awarding the plaintiff 20 months, the court stated that while the lack of available employment opportunities resulting from a depressed economy is a factor to be taken into account, it “must not be given undue emphasis”.
Discounted Notice Period
read more »
Effective today, there are some new rules in place for Records of Employment submitted electronically by employers to Services Canada through its online services. You can read about the new rules here.
The 2009 Accommodation Law Conference is being held in Vancouver on May 27 & 28 at the Fairmont Hotel Vancouver.
It will adress "New legal breakthroughs in the duty to accommodate and their impact on union and employer representatives in Canada".
The conference is being put on by the Centre for Labour-Management Development.
Union counsel presenters are Theo Arsenault, Gary Bainbridge, Gino Fiorillo, and Shona Moore, Q.C. Employers counsel presenters are: Chuck Harrison. Michael Wagner, Kevin Wilson and Andrea Zwack.
British Columbia's unemployment rate increased to 6.7 percent in February, according to the Statistics Canada "Labour Force Survey" that was released today. This is up from 6.1 percent in January 2009.
Nationally, the unemployment rate rose to 7.7 percent in February, up 0.5 percent from January. The largest decline in employment occurred in Ontario (-35,000), followed by Alberta (-24,000) and Quebec (-18,000).
A decrease of 43,000 in construction positions accounted for over half of the employment decline in February. The only industries with gains were manufacturing and agriculture.
This Canadian Press story today lists some of the specific layoffs that have been announced in Canada in 2009. Among them are Howe Sound Pulp and Paper's announcement earlier ths week that it will be lay off 101 unionized positions at its operations on the Sunshine Coast. The employees are members of Communications, Energy and Paperworkers Union, Local 1119.
The Vancouver Sun reported today that close to 750 food and beverage workers at GM Place voted 83% in favour of a strike last weekend.
The employees are represented by Unite Here Local 40. The employer is Aramark Sports and Entertainment. The collective agreement expired in December 2008.
You can read the full article here.