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2009

BCTF to seek leave to Supreme Court of Canada on "political protests" case

Jurisdiction: - British Columbia
Sector: - Education

It was reported in an article in today's Vancouver Sun that the BC Teachers Federation will seek leave to appeal to the Supreme Court of Canada on the "political protests" case.

The BC Court of Appeal dismissed their (and the Hospital Employees Union's) appeal in a decision handed down on February 4, 2009.

Consultations underway to modernize Federal Labour Standards under Part III of the Canada Labour Code

Jurisdiction: - Canada/Federal

The federal government announced today that it will be commencing the long-awaited consultations on the federal labour standards found in Part III of the Canada Labour Code.

Part III of the Code has not been revised since it was enacted over 40 years ago.

The Government states that its priorities in reviewing federal labour standards are to: (1) modernize workplace practices; (2) promote family-friendly policies and work-life balance (3) and to foster long-term economic prosperity.

The consultations follow up on the report issued by Professor Harry Arthurs in October 2006 and entitled Fairness at Work: Federal Labour Standards for the 21st Century.  read more »

BC Court of Appeal hands down decision in "political protests" case

Jurisdiction: - British Columbia
Sector: - Education

In a decision handed down on February 4, 2009 - British Columbia Teachers' Federation v. British Columbia Public School Employers' Assn., 2009 BCCA 39 - the BC Court of Appeal ruled that the political protests/work stoppages conducted by members of the BC Teachers Federation and the Hospital Employees Union in 2002 were "strikes" in contravention of the BC Labour Relations Code.

In dismissing the appeal, the Court of Appeal ruled that while the definition of "strike" in section 1 of the BC Labour Relations Code infringes the freedom of expression guarantees in Section 2(b) of the Canadian Charter of Rights and Freedoms, the infringment is justified under Section 1 of the Charter.

The Court of Appeal further ruled that the defnition of "strike" does not infringe Section 2(c) or Section 2(d) of the Charter.

The Court of Appeal's decision upholds - in the result - previous decisions of the BC Labour Relations Board and the BC Supreme Court (2007 BCSC 372).

WorkSafeBC levies $2.7 million in penalties for safety offences in 2008

Jurisdiction: - British Columbia

WorksafeBC released its 2008 Penalty Report today.

According to the accompanying media release, WorkSafeBC imposed 152 penalties in 2008 totaling more than $2.7 million for violations of the Occupational Health and Safety Regulation and the Workers Compensation Act (the Act). Individual penalties ranged from $1,000 up to $150,000".

A fatality was involved in 13 of the incidents that led to penalities, including the penalty for $150,000.

Sexual harassment at Christmas party and dishonesty during investigation lead to senior employee's dismissal

Jurisdiction: - British Columbia

The plaintiff's employment with Marriot Hotels of Canada Ltd. was terminated for cause on February 1, 2007. He was 46 years old, had been employed by the hotel for 22 years and held the position of Director of Sales and Marketing.

Prior to the incidents in question, the plaintiff's employment record was free of any discipline.

The defendant hotel alleged cause for dismissal based on the fact that the plaintiff:

  • Was a senior manager with responsibilities for supervising the company holiday party, permitted the excessive consumption of alcohol, engaged in sexually suggestive dancing, and condoned an "after-party" where Marriott employees drank heavily;
  • Engaged in inappropriate sexual touching with a female subordinate in the bathroom at the after-party; and
  • Was dishonest when he denied the sexual touching allegation during the defendant's investigation of his misconduct.

Distribution of drink tickets, alcohol consumption and suggestive dancing

In relation to these allegations, the court found that:  read more »

"Back to Basics in Employment Law: Restatement & Harmonization of Damages in the Employment Setting"

Murray Tevlin and John Chesko  have written a paper entitled, "Back to Basics in Employment Law: Restatement & Harmonization of Damages in the Employment Setting" (January 24, 2009).

The authors are lawyers at TevlinGleadle Employment Law Strategies in Vancouver, The paper was presented the paper at Insight Canada's 4th Annual Western Canada Labour Relations Conference.

The paper's Overview provides:

This paper proceeds to consider two important recent advances in the theory of damages both in common law and in unionized employment settings.

The first part of this paper discusses the significant restatement and harmonization in the law of damages for wrongful dismissal set out in the recent decision of the Supreme Court of Canada in Honda v Keays [2008] SCJ No 40.  read more »

"Managing Flexibility in the Workplace While Avoiding Constructive Dismissals"

Jurisdiction: - British Columbia

A lawyer with Clark Wilson LLP in Vancouver has written a paper entitled, "Managing Flexibility in the Workplace While Avoiding Constructive Dismissals (2008)". She ends her paper with a list of "Helpful Hints" for employers when restructuring.

Supreme Court of Canada issues decision on restrictive covenants in employment contracts

Jurisdiction: - British Columbia

In a decision issued January 23, 2009 - Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 - the Supreme Court of Canada clarified when, in an employment contract, the doctrine of severance may be invoked to resolve an ambiguous term in a restrictive covenant or render an unreasonable restriction in the covenant reasonable.

Facts

In the late 1980s, Mr. Shafron sold his insurance agency business to KRG Insurance Brokers Inc. ("KRG"). Mr. Shafron continued to be employed in the business, however, through a series of employment contracts.

The employment contracts contained a non-competition clause that stated that if Mr. Shafron left KRG for any reason other than being terminated without cause, he would not compete with KRG for a period of three years by being involved with any insurance brokerage business which is carried on within the "Metropolitan City of Vancouver". At the time, the "Metropolitan City of Vancouver" was not a legally defined term.  read more »

Federal Privacy Commissioner issues guidelines for processing personal data outside Canada

Jurisdiction: - Canada/Federal

This week the Office of the Privacy Commissioner of Canada (OPC) issued "Guidelines for Processing Personal Data Across Borders".

The guidelines explain how the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to transfers of personal information to a third party, including a third party operating outside of Canada, for processing.

These guidelines are important because, as the OPC notes:

PIPEDA does not prohibit organizations in Canada from transferring personal information to an organization in another jurisdiction for processing. However, under PIPEDA, organizations are held accountable for the protection of personal information transfers under each individual outsourcing arrangement.

Federal budget includes changes to Employment Insurance entitlements

The federal budget that was tabled today set out changes to Employment Insurance entitlements, including the following:  read more »

Discharge upheld where employee with gambling addiction stole $1,600 from co-worker

Jurisdiction: - Nova Scotia

Communications, Energy and Paperworkers Union, Local 40N and Farmer's Cooperative Dairy Ltd. January 11, 2009 (Christie) (Nova Scotia)

BC Appeal Court reviews law on notice period for short service employees and rights under stock option plans

Jurisdiction: - British Columbia
Sector: - High Tech

In Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the BC Court of Appeal addressed:

  1. the notice period owed to a short service employee; and
  2. an employee's entitlment to stock options during the notice period.

Notice Period

The employee's employment was terminated without cause after approximately nine months of service. She had held a senior software sales position, was 35 years old and earned a base salary of $60,000 with target earnings of $100,000 inclusive of commissions.

The BC Court of Appeal upheld the trial judge's award of a five month notice period, finding that it was not unreasonable given that it took the employee nine months to secure new employment.

However, in a statement that will bring comfort to employers, Madam Justice Huddart  also stated that:  read more »

Update on law concerning smoking in the workplace in BC

Jurisdiction: - British Columbia

There have been a few new developments concerning smoking in the workplace over the last 12 months.

First, new regulations under the Tobacco Control Act came into effect March 31, 2008. Among other things, the new regulations ban:

  • Smoking in all indoor public spaces and work places (with exemptions made for the ceremonial use of tobacco by Aboriginal people); and
  • Smoking within three metres of public and workplace doorways, open windows or air intakes.

Second, sections 4.81 and 4.82 of the Occupational Health and Safety Regulation (under the Workers Compensation Act), which relate to environmental tobacco smoke in the workplace, were amended in order to harmonize the OHSR with the new tobacco laws. The OHSR amendments came into effect on January 1, 2009.

Third, WorksafeBC issued revised (as of January 1, 2009) guidelines on "Controlling exposure to environmental tobacco smoke (ETS)" that reflect the above developments.  read more »