Stella, the golden retriever from New Westminster, is at the center of a first-of-its-kind ruling surrounding custody of a pet. This ruling stems from a relatively new BC law, a first in the country, that recognizes pets as family members, rather than simply property.

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Following a breakup, a New Westminster woman sought custody of the dog she had adopted with her ex-boyfriend. The ex-boyfriend initially claimed sole custody of Stella the golden retriever due to his name being the only one on the dog’s birth certificate. However, after nearly $60,000 in legal fees, a BC Judge ruled that the couple shall share custody of Stella, on a week on/week off basis.

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Associate Judge Scott Nielsen stated it was clear that both member of the former couple loved the dog and argued that the ruling must consider that animals are sentient beings. Associate Judge Nielsen’s ruling comes three months after amendments to the Family Law Act stated that pets and companion animals are more than just the property of whoever purchased the animal, they are members of the family.

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This decision highlights how the court must now consider eight factors when determining custody of a pet or companion animal under the new legislation. These factors are:

1. The circumstances in which the companion animal was acquired
2. The extent to which each spouse cared for the companion animal
3. Any history of family violence
4. The risk of family violence
5. A spouse’s cruelty, or threat of cruelty, toward an animal
6. The relationship that a child has with the companion animal
7. The willingness and ability of each spouse to care for the basic needs of the companion animal
8. Any other circumstances the court considers relevant

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When asked about the legal process and the financial investment required, the claimant stated that “It was all worth it” and that she would “Honestly […] do it all over again”.

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SOURCE

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Recently finalized protections for gig workers, going into effect on September 3, 2024, are a first in the country!

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The new regulations will provide fairness, minimum-wage requirements and basic protections for the approximately 11,000 app-based ride-hailing drivers and 35,000 delivery workers in BC. With nearly 50% of people in BC having used food delivery or ride sharing apps in 2023, these regulations will protect essential employees whose work many BC residents benefit from.

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The yet-to-be introduced regulations will address the top concerns for app-based gig workers, including:

1. Setting a minimum wage for ‘engaged time’, addressing the issue of unpredictable pay,
2. Setting a minimum per-kilometer vehicle allowance to compensate for vehicle expenses, addressing the issue of low pay,
3. WorkSafeBC coverage for app-based ride-hailing and delivery workers, addressing the current lack of workers compensation,
4. Allowing workers to know the locations and estimated pay associated with a job BEFORE accepting it, addressing the current lack of transparency,
5. Informing workers of reason for suspension and termination OR being provided notice or compensation if terminated without cause, addressing “unfair” deactivations and suspensions,
6. Requiring companies to pay 100% of tips provided by customers to workers, protecting workers access to tips they earned.

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These new protections are a starting point to addressing the issues faced by workers in this relatively new working arrangement. As the new regulations are rolled out the ministry will continue to monitor the need for adjustments. It is important to note that these regulations only apply to app-based delivery and ride share drivers and do not extend to other gig workers.

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SOURCE

Mr. Teljeur was employed as a General Manager for Pinestone Resort (“Pinestone”) in Haliburton, Ontario for a period of just over three years. On December 6, 2021, Pinestone terminated Mr. Teljeur’s employment on a without cause basis, advising that they elected to retain an outside management company to manage the resort moving forward. At the time of his termination, Mr. Teljeur, unbeknownst to Pinestone, recorded the termination meeting.

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At trial in Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, Mr. Teljeur was awarded 10 months’ notice, plus benefits, and reimbursement of expenses he had incurred on behalf of Pinestone. In addition to this, the Court awarded Mr. Teljeur $15,000 as moral damages, based on the secret recording of the termination meeting that Mr. Teljeur had produced. The recording unveiled conduct of Pinestone that was “untruthful, misleading or unduly insensitive”, causing a breach by Pinestone of their duty of faith and fair dealing in the manner of dismissal. This conduct included: failing to honour promises made to Mr. Teljeur in the termination meeting, encouraging Mr. Teljeur to resign in the termination meeting, and failing to reimburse Mr. Teljeur in a timely manner for the expenses he had incurred on Pinestone’s behalf. Regarding mitigation, Pinestone attempted to make a crafty argument that Mr. Teljeur had failed to mitigate his damages, claiming that he had “prejudiced” his job search efforts by posting negative comments about the company on his social media. The Court declined to comment on this argument and did not take this argument into consideration of its award for damages.

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The Superior Court’s decision was ultimately affirmed on the (unsuccessful) appeal brought by Pinestone.

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This year there have unfortunately been several mass layoffs in BC. Most recently, Vancity has announced that it is terminating approximately 200 of its employees across the organization.

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To Vancity’s credit, their press release noted that these employees would be provided a “comprehensive, fair and equitable package of compensation, health and wellbeing and career supports.” Importantly, the press release also announced that they would be continuing the employees’ extended health, dental and insurance plans for three months following their termination, a supportive measure many employers don’t take during layoffs.

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It is, however, also important to consider that a “fair” severance package for one employee might not necessarily be a fair offer for another. In the absence of a binding employment contract limiting the employee’s entitlements upon termination (or just cause), an employee will generally be entitled to “reasonable notice” of their termination or “pay in lieu of notice”, what people often refer to as “severance”.

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The amount of reasonable notice that someone is entitled to upon their termination will depend on various factors including the employee’s age, position and length of service. Whether or not a severance package will make sense for an employee to accept depends not only on this analysis but also their realistic job prospects; this is because, generally, an employee’s entitlement to reasonable notice will be offset by “mitigation income” meaning money that they earn from a replacement job.

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Because of all this, it is often worthwhile (especially for those who have been employed somewhere for a long period of time) to have a BC-based employment lawyer review their package with them and obtain legal advice regarding their legal options. It’s important to remember that everyone’s situation will be slightly different, so just because a former colleague has taken a certain approach doesn’t mean that that approach will be the ideal one for others.

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If you *do* seek legal advice/representation, some things to keep in mind are that:

1. If you feel uncertain at the end of a consultation, you don’t *have* to retain that lawyer to represent you. You should hire a lawyer that you feel comfortable with and trust.
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2. Different lawyers and law firms will charge different rates (and some firms may offer contingency or other forms of retainer that can be more affordable).
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3. There is also ample legal information online, but legal information isn’t the same as tailored legal *advice*.

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The Ontario case Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332 involved the appeal of a wrongful dismissal award, with the employer appealing the Superior Court’s award of aggravated damages, decision on mitigation, and decision on the joint and several liability of common employers.

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Mr. Krmpotic worked full-time for Thunder Bay Electronic Limited (“TBEL”) and Hill Street Financial Services (“HS”) for almost 30 years. On June 13, 2016, Mr. Krmpotic’s employment was terminated by TBEL and HS without notice or cause. At the time of his termination, Mr. Krmpotic had just returned to his employment from a medical leave of absence (recovering from back surgery). Hours after returning, his employment was terminated by TBEL and HS. At trial, Mr. Krmpotics was awarded 24 months as common law notice, plus $50,000 in aggravated/moral damages for the manner in which he was terminated, finding TBEL and HS jointly and severally liable for the damages. TBEL and HS were unsuccessful, on all accounts, with their appeal, with the Ontario Court of Appeal affirming the original decision and awarding costs to Mr. Krmpotic for the appeal. In upholding the award for aggravated/moral damages, the Court of Appeal placed considerable focus on TBEL and HS’s misleading and untruthful statements to Mr. Krmpotic surrounding the cause for his dismissal – which included advising Mr. Krmpotic that his dismissal was due to “financial reasons” and was not related to his recent medical leave and subsequent limitations in the workplace. The trial Judge ultimately found this to be untrue, finding that Mr. Krmpotic’s condition and subsequent limitations were a factor in the decision to terminate his employment. A lesson to employers when choosing to provide an employee a reason for dismissal in the context of “without cause” terminations.

L.C.C.v. M.M., 2023 HRTO 1138 is an interesting Ontario Human Rights Tribunal decision, centralizing around the alleged contravention of a settlement agreement.

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M.M. brought a discrimination complaint with the Human Rights Tribunal of Ontario against the corporate employer and an employee of the corporate employer. Through an early mediation, the parties were able to resolve the dispute, entering into Minutes of Settlement on June 7, 2019 (the “MOS”). The MOS specifically included confidentiality, mutual non-disparagement, and breach clauses.
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Following the settlement, M.M. posted a statement on their LinkedIn profile which stated:
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               “To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the corporation] and [the individual] for sex discrimination]”.
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In the fall of 2019, M.M. added this post to the first sentence of their public LinkedIn biography in the “About” section, replacing the original post. 15 months after being posted, the employer discovered the posting and wrote to M.M. requesting them to remove the posting. M.M. did not respond, but about a month after the employer’s letter, revised the posting to read:
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               “To all those inquiring, all matters have been resolved in my Human Rights Complaint against [the corporation] and [the individual] for sex discrimination”.

L.C.C. and L.C. filed an application for breach of the MOS. Following the filing of the application, M.M. removed the posting from LinkedIn.
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M.M. claimed that they did not consider the post to be in breach of the confidentiality provision of the MOS, and provided a number of reasons to defend her decision to make the posting. The Tribunal did not accept these excuses.
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The Tribunal identified that the MOS was a binding contract, and carefully analyzed the relevant principles of contract law and breach of contract. In doing so, it found that M.M. had a “duty to act in good faith” and to “have appropriate regard to the legitimate contractual interests of the contracting partner”. The Tribunal ultimately found that M.M. had not met these duties, and had breached the terms of the MOS. The Tribunal underscored in its decision that the very purpose of the confidentiality and non-disparagement provisions was to prevent reputational damage to L.C.C. and L.C. Accordingly, M.M. was ordered to repay the settlement funds, with interest, and ordered that M.M. must comply with the terms of the MOS. M.M. brought forward a request for reconsideration of this decision, which was refused.

Lucy Chestacow was employed as a Resident Care Attendant for Mount St. Hospital of Marie Esther Society (the “Hospital”) for over 20 years. Throughout her employment, Ms. Chestacow was a member of the Hospital Employees’ Union (the “HEU”).

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Ms. Chestacow filed a civil claim against the Hospital claiming that the conduct of some managerial employees of the Hospital created an environment that she could not tolerate, forcing her to quit. She also alleged that this conduct caused mental injuries and loss, and that the Hospital failed to accommodate her. The Hospital brought an application to strike Ms. Chestacow’s claims, citing that the court lacked jurisdiction, as such claims were under the sole jurisdiction of the HEU and WorkSafeBC (“WCB”).

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The Court agreed with the employer’s position, citing that the decision had nothing to do with the merits of Ms. Chestacow’s dispute, but rather, that the “essential nature” of her dispute was not within the jurisdiction of a civil action. Specifically, the Court found:

1. That a dispute with the Hospital about whether the terms of her employment were violated had to be addressed through the grievance and arbitration procedure with the HEU, as HEU had the exclusive right and obligation to represent Ms. Chestacow in this process.
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2. That Ms. Chestacow’s claims of mental injuries occurring at work were within the exclusive jurisdiction of WCB and the Worker’s Compensation Appeal Tribunal, pursuant to s. 127 of the Workers Compensation Act, R.S.B.C. 2019, c. 1.
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3. That a dispute with the HEU about how it represented her was within the exclusive jurisdiction of the British Columbia Labour Relations Board under ss. 12 and 13 of the Labour Relations Code, R.S.B.C. 1996, c. 244.
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This decision brings important considerations for unionized employees about how to seek assistance with any employment-related issues, and to tread carefully – and, importantly, seek legal advice – before bringing any civil claims involving unionized workplace issues.”

Byron Bach was a unionized employee with the BC Liquor Distribution Branch (“LDB”). Mr. Bach had  been employed with the LDB as an auxiliary employee since 1999. Since 1996, Mr. Bach was also employed with Save-On-Foods (“Save-On”). From 2005 to April 2021, Mr. Bach worked graveyard shifts at Save-On, and then auxiliary shifts at the LDB from 2:00PM until closing. Mr. Bach worked these shifts, full-time, in order to financially provide for his wife and three children, as his wife could not work for health reasons. In April 2021, the LDB attempted to convert Mr. Bach from an auxiliary employee to a regular employee, and subsequently, attempted to alter Mr. Bach’s working schedule with the LDB. Mr. Bach objected to the changes and filed a Human Rights Tribunal complaint alleging discrimination on the basis of family status.

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The LDB filed an application to dismiss Mr. Bach’s complaint on the grounds that it had “no reasonable prospect of success", citing Mr. Bach’s decision to hold a second job, which the new schedule would interfere with, was a “personal preference” that Mr. Bach did not hold a right to. In order to assess Mr. Bach’s complaint, the Tribunal analyzed the three requirements Mr. Bach would have to prove to make his case at a hearing – (1) he has a personal characteristic that is protected by the Code, (2) he was adversely impacted in employment, and (3) his personal characteristic was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61; British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168). Ultimately, the Tribunal found that Mr. Bach’s complaint passed the three elements needed to stave off dismissal and dismissed the LDB’s application. In doing so, the Tribunal noted that family status complaints typically are related to direct childcare duties or spousal or elder care responsibilities, whereas Mr. Bach’s complaint was “somewhat novel” in nature. It will be interesting to see how the Tribunal continues to apply this relatively new three-part test in future family status complaints, as this area becomes more expansive.

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To read the full case, click here.

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The Federal Court has instructed the Canada Border Services Agency (CBSA) to conduct a new workplace investigation, appointing a different investigator this time. This decision follows extensive allegations from a veteran border guard about enduring workplace harassment and violence.
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C.M., who joined the CBSA in 1994, reported experiencing various forms of mistreatment, including hate crimes, discrimination, physical assaults, and derogatory behaviour from supervisors, over a 25-year period from 1995 to 2020.
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In January 2023, a CBSA report concluded that none of these incidents constituted workplace harassment or violence under their guidelines. As a result, no preventive measures were taken, and the case was closed.
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Dissatisfied with the investigation’s findings and process, C.M. filed a judicial review, arguing that the investigation was procedurally unfair. The Federal Court sided with C.M., describing the process and final report as "fundamentally flawed" and ordering a new investigation by a different investigator.
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Concerns Over Procedural Fairness
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The court identified significant procedural failings in the CBSA's initial investigation, most importantly C.M. was not allowed to review or respond to contradictory statements or see the preliminary report as required in the CBSA’s Workplace Harassment and Violence Prevention Regulations Checklist before the final decision was made. The court ruled that this exclusion violated procedural fairness and warranted a fresh investigation.
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Questions on Harassment Definitions

The court's decision also raised concerns about the standards the CBSA used to define harassment and violence. The initial investigator’s findings that none of the reported incidents met these standards were a key factor prompting C.M. to seek judicial review.  In this case, the investigator wrongly looked at each incident separately, and did not consider that together the incidents demonstrated a pattern of activity.

Issues with Transparency

A major issue highlighted by the court was the lack of transparency and communication during the investigative process. The judge emphasized that C.M. should have been given the opportunity to counter any unfavourable evidence and respond to claims by managers that their behaviour did not amount to harassment or violence.
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Mandate for a New Investigation

In its ruling, the court not only mandated a new investigation but also emphasized the importance of allowing C.M. to review and respond to all evidence and findings before the final report is issued. Emphasizing the importance of following the written policy at CBSA, the court stated, “The matter is referred back to CBSA for redetermination after a new investigation is conducted by a different investigator and after the Applicant has had the opportunity to see and make submissions on evidence gathered in his absence and to comment on the investigator’s preliminary report before it is sent to CBSA.”
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Furthermore, the court awarded C.M. $3,500 for costs, a pre-agreed sum between both parties.
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For more details, see Marentette v. Canada (Attorney General), 2024 FC 676 (CanLII).