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2017

Finding of negligence upheld for pre-hiring misrepresentations

Jurisdiction: - British Columbia
Sector: - High Tech

The B.C. Court of Appeal recently upheld one of the infrequent successful employment law tort claims in Feldstein v. 364 Northern Development Corp., [2017] BCCA174. The plaintiff, who suffers from cystic fibrosis, alleged the employer advised him in the pre-hiring phase that "proof of good health" for the purpose of his LTD coverage required only that he make it through the three-month waiting period prior to the plan coming into effect. However, when he required access to his benefits he was denied full coverage on the basis he had a pre-existing condition. 

The employer argued at trial that the representation was not made, the test for negligence was not met, and also that it was entitled to rely on an "entire agreement" clause in the contract. The trial judge rejected these arguments, and awarded the plaintiff over $83,000 in lost benefit payments, and $10,000 in aggravated damages. 

The Court of Appeal refused to interfere with the trial judge's findings concerning the negligence claim. It further found the entire agreement clause was not drafted in such a way as to protect the employer from the specific misrepresenation it made.   read more »

"Swipe card" records inadmissible to prove time theft

Jurisdiction: - British Columbia
Sector: - Manufacturing;

In the recent arbitration decision Zellstoff Celgar Ltd. v. Public and Private Workers of Canada, Local 1, [2017] B.C.C.A.A.A. No. 53, an arbitrator excluded evidence obtained in breach of PIPA but allowed the employee's admission against interest procured after being presented with the excluded evidence. 

The employer terminated the grievor for time theft after learning his time cards did not align with the 'swipe card' records showing when the grievor entered and exited the building. The arbitrator accepted the union's argument that employees were not notified the swipe card records would be collected and used by the employer, and therefore the data was collected contrary to PIPA and should not be admitted. 

However, the arbitrator accepted the grievor's admission of time card discrepancies was admissible, despite the confession having been procured after being confronted with the swipe card records.   read more »

BC to reinstate Human Rights Commission

Jurisdiction: - British Columbia

The new Provincial government announced its intention to reinstate the Human Rights Commission, fifteen years after it was eliminated in favour of a direct-access model. In addition to creating an agency that will proactively address human rights issues, it may also see the reintroduction of a more robust complaint screening method whereby complaints are investigated prior to adjudication. 

BC Human Rights Tribunal reviews social media request for legal advice to determine if communication privileged

Jurisdiction: - British Columbia

In Hov v. School District No. 43 and another, 2017 BCHRT 162, the complainant sought disclosure of a conversation conducted via Facebook Messenger by an individually named respondent, in which the respondent sought, and seemingly obtained, legal advice from an Ontario lawyer.

The respondents claimed solicitor-client privilege over the communications but the Tribunal ordered the conversations to be disclosed directly to the Tribunal so they could assess if the documents should be protected by privilege. The Tribunal's rationale was that there was an insufficient description of the communications and they were unable to determine if they should be protected. 

Interestingly, the lawyer affirmed by affidavit that he was was providing legal advice within the communications. Query whether providing details of the communications between a lawyer and their client would undermine the underlying claim to privilege. 

Business Council of BC report foresees more precarious work, greater income inequality in the future

Topics: - Workforce Trends
Jurisdiction: - All - British Columbia
Sector: - All

The Business Council of British Columbia ("BCBC") has released a report on, "Preparing Canada's Workforce for the Next 150: Part One - Government Driven Solutions" (posted July 5, 2017).

The BCBC states in the report that, based on its reading of the policy and academic literature, these are three reasonable projections of what the labour market is expected to look like in the decades ahead:

  1. employment will be less secure, as we shift from stable, predictable employment to more precarious work.
  2. greater polarization between skilled and non-skilled workers, which in turn tends to aggravate overall income inequality. 
  3. declining quality of jobs, meaning more people are working part-time instead of full-time (often not by choice), more are self-employed, and more are engaged in relatively low-paid work.

The report goes on to review the "levers" that government can use to address these trends, which include investing in the right kinds of education and skills development and continuing to support investment in STEM-related occupations (Science, Technology, Engineering, Mathematics and Computer Science), and the industries that rely on STEM and related technical skills.

The full report can be viewed at the link below.

Andres Barker now writing posts for www.greggowe.com

I am very happy to announce that Andres Barker is now writing posts for www.greggowe.com.

Andres is an in-house labour and employment lawyer with the Health Employers Association of British Columbia. Prior to that he was in private practice with Kent Employment Law.

Andres' most recent post is about the BC Court of Appeal's decision in Lau v. Royal Bank of Canada, 2017 BCCA 253 and is entitled, "BC Court of Appeal affirms medical evidence not required to prove aggravated damages".

Stay tuned for our upcoming re-launch of the website!

BC Court of Appeal affirms medical evidence not required to prove aggravated damages

Jurisdiction: - British Columbia

In Lau v. Royal Bank of Canada, 2017 BCCA 253, the British Columbia Court of Appeal overturned a $30,000 aggravated damages award attached to a wrongful dismissal judgment. During the initial trial the plaintiff gave evidence of the effects the termination had on his mental well-being but presented no medical evidence to substantiate his claims of mental distress. The court found the plaintiff was not harassed, scolded or or otherwise mistreated, and his testimony did not provide a sound basis for finding he suffered injury beyond the hurt feelings and distress that accompany any termination.

This decision affirms several important points surrounding mental distress claims in wrongful dismissal actions: actual bad faith conduct is a critical element of an award of aggravated damages; mental distress claims do not need to be accompanyed by proof of a psychiatric illness; and a plaintiff's own testimony absent medical corrobation is a valid consideration for the court. 

Probation clause could not be relied on where employment offer rescinded

Jurisdiction: - British Columbia
Sector: - Media

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the BC Supreme Court ruled that a defendant could not rely on a probation clause to justify early termination where the offer of employment was rescinded after the contract was entered into, but before the official first day of employment. The court found that the probation clause had not yet taken effect as employment had not started. Additionally, there was no means for the employer to have assessed the employee’s performance and terminated them for lack of suitability. The court awarded the plaintiff damages of six weeks’ salary. 

Gender identity / expression to be added as ground of protection under Canadian Human Rights Act

Jurisdiction: - Canada/Federal
Sector: - All

The federal government voted on on June 15, 2017 to add gender identity or expression as a prohibited ground of protection under the Canadian Human Rights Act, which applies to federally regulated organizations in Canada.

One it receives Royal Assent, Bill C-16 - also known as the Transgender Rights Bill - will also add gender expression or identity to the Canadian Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing.

In the House of Commons debate on the legislation Justice Minister Jody Wilson-Raybould said:

Bill C-16 reflects our commitment to this diversity and provides for equality and freedom from discrimination and violence for all Canadians, regardless of their gender identity. With the bill, we say loudly and clearly that it is time to move beyond mere tolerance of trans people. It is time for their full acceptance and inclusion in Canadian society.

She then went on to say:  read more »

SCC: cocaine addicted employee involved in workplace accident dismissed for breach of policy, not drug use

Jurisdiction: - Alberta - All
Sector: - Mining

In a decision issued today - Stewart v. Elk Valley Coal Corp., 2017 SCC 30 - the Supreme Court of Canada tackled the difficult issue of when and on what basis an employer can dismiss an employee addicted to drugs.  

Facts

As set out by the SCC, these are the facts:

[1]   Ian Stewart worked in a mine operated by the Elk Valley Coal Corporation, driving a loader.  The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees  read more »

16 reasons why Alberta trade unions are celebrating the Fair And Family-Friendly Workplaces Act

Topics: - Top 10 Lists
Jurisdiction: - Alberta

Alberta tabled the Fair and Family-Friendly Workplaces Act on May 24, 2017. See my post on this proposed legislation here: "Recap of changes proposed by Alberta to modernize workplace legislation".

A lawyer at McLennan Ross LLP in Edmonton, Hugh J.D. McPhail, Q.C., has written an article listing out "16 Reasons Why Alberta Trade Unions Are Celebrating The Fair And Family-Friendly Workplaces Act."

In his words, these are the 16 reasons why unions are celebrating this bill:   read more »

City of Vancouver now a certified Living Wage employer

Jurisdiction: - British Columbia

This is the City of Vancouver's June 8, 2017 news post on its website:

The City, Park Board, and Vancouver Police Department have taken steps to reduce inequality by becoming living wage employers, certified by the Living Wage for Families Campaign External website (LWFC), a Vancouver-based organization that has certified a range of employers.

Our living wage certification includes the City of Vancouver and Park Board staff and vendors.

The Vancouver Police Department submitted a separate application that was also approved at the same time.

The City of Vancouver joins several local governments in BC who have successfully implemented living wage policies:  read more »