In an attempt to enhance consumer protection for homebuyers, the B.C. government has introduced a new 3-day “cooling-off period” on residential real estate sales. The “homebuyer protection period”, asit is referred to by the B.C. government, is a first of its kind in Canada, and becomes effective on January 1^st, 2023.

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The cooling-off period is meant to protect B.C. homebuyers from being pressured into high-risk sales. Amendments to the Property Law Act made in April 2022 grant the B.C. government the power to enact regulations which enhance buyer protection in the real estate market. The regulations will come into force by January 1, 2023, and will add a right of rescission (cancellation) to the Property Law Act, under which a buyer of residential real estate will have 3 business days (the “cooling-off period”) following an accepted offer to conduct research on the property, such as carrying out inspections, securing mortgage loan financing, and seek ng legal advice, before deciding whether to rescind their offer. The new cooling-off period is intended to apply to resale property and newly constructed homes. Cooling-off periods for pre-construction sales of multi-unit development properties, like condominiums, are already in place under the province’s Real Estate Development and Marketing Act.

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Buyers can still make offers conditional at any time (for example, on things like obtaining financing or a satisfactory home inspection). The cooling-off period is meant to offer homebuyers the opportunity to conduct research on the property at times when their offer does not have any conditions in place, as was often the case during the booming market over the past several years.

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The new cooling-off period includes a rescission (cancellation) fee of 0.25% of the property’s purchase price, or$250 for every $100,000, for those buyers who choose to back out of a deal. For example, if the buyer exercises its right to cancel its offer on a $1-million property, they would be required to pay $2,500 to the seller. Commentators have noted that the penalty could be small enough that there could be increased activity in buyers backing out of deals after big announcements, such as substantial Bank of Canada interest rate hikes or particularly jarring inflation reports.

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The cooling-off period is one of several recommendations which the B.C. Financial Services Authority  (BCFSA) made in May 2022 to cool down the province’s white-hot residential real estate market. The B.C. government had initially pitched a 7-day cooling-off period, but the B.C. Real Estate Association had pushed back. Instead, the realtors’ association proposed a5-day pre-offer period, which would require that a listing remain on the market for at least 5 days before an offer could be accepted, which should theoretically have the intended effect of stemming bidding war by desperate buyers. The BCFSA included the real estate sector’s proposed 5-day pre-offer period in its list of recommendations in May.

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Contrary to the BCFSA’s recommendations, the new legislation does not include the 5-day pre-offer period, legal provisions to ensure that a buyer gets reasonable access to the property during the cooling-off period to conduct an inspection, or a requirement for a buyer to have to inform the seller whether or not the buyer has active offers on other properties before the seller accepts the buyer’s offer.

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Although the new regulations are intended to protect individual buyers of houses and condos, they use the term“ residential property”, which is quite broad. This means that sales of apartment buildings and seniors homes may be caught by the changes, even though such sales are typically considered business transactions. If the regulations that come into force at the end of this year do not provide exemptions, commercial brokers and investors will need to be aware of the new cooling-off provisions and account for them under their contracts of purchase and sale. As the new laws will come into force at the end of the year, the full details, including potential exemptions for residential properties such as apartment buildings and seniors homes, are not yet clear.

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If you have any questions regarding the new cooling-off period, please contact Christine Wang or Aman S. Bindra of our Surrey office, or Tyler Evans or Dan Grice of our Abbotsford office.

Two recent cases from the BC Supreme Court involving employees over 60 highlight two important employment law principles.

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Okano v Cathay Pacific Airway Limited, 2022 BCSC 881

In Okano v Cathay Pacific Airway Limited, 2022 BCSC 881 ("Okano"), the plaintiff was 61 years old and worked for the defendant airline company for just under 35 years when she was terminated without cause during the pandemic. At the time of dismissal, the plaintiff was in a middle management position where she was responsible for some financial decisions and had the ability to hire and fire employees.    

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The plaintiff did not have a written contract dealing with severance. Therefore, she sought a notice period of 26 months at common law. The court ruled that apart from exceptional cases, the upper limit for reasonable notice is 24 months:

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[45] Our courts have been clear that, absent exceptional circumstances, the upper limit for reasonable notice is 24 months: Ansari at 42. The mere fact that the plaintiff was a long-term valued management-level employee does not constitute an exceptional circumstance that would lead to an increase in the upper limit of 24 months: Waterman v. IBM Canada Limited, 2010 BCSC 376 at paras. 20–24, aff'd on other grounds 2011 BCCA 337.

The court determined this case was appropriate to award the maximum 24 months given the employee’s long service, age, and management status.

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Importantly, the court reduced the plaintiff’s damages by 3 months for failure to mitigate (with an additional contingency reduction of 15% to the 7 months remaining in the notice period). The plaintiff made no efforts to find work in the first two months, then made passive efforts until the next summer. Most significantly, she decided not to apply for work in the airline industry. In making this deduction, the court confirmed that reasonable mitigation requires that terminated employees actively pursue employment in their field of employment and/or industry.

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Toy v 0954516 BC Ltd., 2022 BCSC 1161

In Toy v 0954516 BC Ltd., 2022 BCSC 1161, a 62-year-old fuel and scale attendant making about $40,000 pear year with 5 years of service brought a wrongful dismissal claim. In considering the Bardal factors, the court determined that 5.5 months of notice was appropriate.

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However, this employee also failed to mitigate his damages by only applying for 3 jobs in the year following the dismissal. The judge found that had the employee made reasonable efforts, he would have found work sooner. As a result, the court reduced damages by 2 months. After factoring in the one month already paid at the time of dismissal, the employee only ended up with an award of 2.5 months pay or less than $10,000.

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Takeaways

Employers can take some comfort in knowing that 24 months continues to be the common law maximum for reasonable notice, absent exceptional circumstances. However, 24 months is no small number especially for a senior manager! The best way for employers to avoid such exposure is to have well-drafted termination clauses that limit your liability to something less than the common law. If you would like your contract reviewed or if you would like to have contracts drafted, please contact your KSW lawyer today

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Read more of these updates on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance revising your employment contracts or policies, please reach out to Chris Drinovz at cdrinovz@kswlawyers.ca, or submit a Contact form.

In the recent decision of Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal upheld the just cause dismissal of a high-level manager with 30 years of service after he smacked the buttocks of a female co-worker.

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Facts

The plaintiff worked for the company for 30 years and was in the position of Operations Manager at the relevant time. The incident occurred in the office when the plaintiff was with several co-workers joking around. He crouched down and placed his face near a female co-workers breasts for two to three seconds; as he was getting up, he then smacked her buttocks with a sweeping gesture.    

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The company conducted an investigation into the incident and terminated the plaintiff for cause pursuant to its harassment policy. The plaintiff sued for wrongful dismissal. He did not deny the touching, but claimed it was accidental and non-sexual. He argued that the termination was disproportionate given his 30 year history and otherwise blameless disciplinary record. He also referred to the company’s progressive discipline policy and said that a less discipline should have been considered first under that policy.

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Court Decisions

In the trial, the company showed that it had considered the possibility of less discipline, but deemed them not appropriate because continuing to employ the plaintiff would send a message to other female employees that the misconduct was condoned.

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The trial court, and subsequently the appeal court, upheld the termination for cause. The courts concluded that dismissal was a proportionate response given: the seriousness of the harassment; the existence of a zero-tolerance harassment policy; the employee’s role as a manager and the fact that he weas responsible for implementing the harassment policy; and the employee’s lack of appreciation and remorse for his conduct during the investigation. The court found these factors regardless of the fact that sexual banter and joking around was commonplace in this particular work environment.  

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Interestingly, at trial the successful employer was awarded legal costs of almost $75,000. However, the appeal court disentitled the employer to its costs for making statements to the media before the trial (through a press consultant) that were sensationalist and misleading. The behaviour was classified as misconduct as the court found it had the potential to taint the evidence and witnesses.

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Takeaways

This case follows other recent cases showing courts are increasingly unwilling to treat any instance of sexual touching or harassment as “minor” and uphold a just cause dismissal where a single instance of such conduct is proven. This is amplified where the perpetrator is part of management and responsible for setting an example or enforcing the very policy they have breached. In addition, a half-hearted apology or lack of remorse during the investigation will be a relevant factor.  

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Notwithstanding this precedent and the judicial trend, termination for cause remains a very high bar. The Supreme Court of Canada test of McKinley still requires employers to consider the context of the situation, including the employee’s years of service, any past record, the seriousness of the conduct in issue, and existing workplace policies. In addition, the employers must consider the possibility of lesser discipline and whether it is appropriate in the circumstances under a consideration of proportionality.    

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Employers should consider their current policies and ensure they have strong anti-harassment and discrimination policies in place with appropriate training, in addition to well-developed processes and procedures for the investigation of complaints. A good policy and a solid investigation will go a long way in the event of a lawsuit. Finally, if litigation is contemplated, employers should seek legal advice before making any public statements about the case.

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Our employment and labour lawyers are heavily involved in various local BC Chambers and Policy Committees, attend roundtable discussions and present webinars regularly on the Employment Standards Act and related legislation. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance revising your employment contracts or policies, please reach out to Chris Drinovz at cdrinovz@kswlawyers.ca, or submit a Contact form.

A labour arbitrator appointed to hear an employer grievance for damages in defamation against its union, Unite Here Local 40, has awarded the employer $500,000 but would not award costs.  Yes you read that right — a labour arbitrator operating under a collective agreement and not a court has made that award.  Not only is the amount of the award stunning and potentially crippling to Local 40 it shows just how far the courts, applying the Weber decision have refused to take jurisdiction on any matter that is even remotely connected to the collective agreement. In an earlier award the Arbitrator decided he had jurisdiction because “if the statements were defamatory they would constitute bad faith in the administration, application and performance of the collective agreement which violated the principles laid down in Bhasin v Hrynew, 2014 SCC 71, [2014] 3 SCR 494, and the dispute was therefore arbitrable.” [Page 2]

The full decision is available here: 2022CanLII 51879 (BC LA) | Civeo Corporation v Unite Here, Local 40 | CanLII

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Civeo Corporation is an international company that provides housing to construction projects including the Kitimat Sitka Lodge in Kitimat.  It had a collective agreement applicable to employees at the Kitimat LNG project.  The collective agreement in question ran from 2018 and was in effect in 2021 when the defamatory statements were made.  Local 40 had a dispute with Civeo as it wanted it to open up the collective agreement and increase wages and provide better hiring practices.  To support its agenda it tried to appeal to the public including the Indigenous public by posting the following on its web site:

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Civeo’s broken promises to First Nations people:

·      Low wages

·      Decrease in hiring of Indigenous workers over the past 2 years

This means that Civeo has not showed commitment to improving the living standards of Indigenous workers and their families.

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Civeo had prided itself in how it dealt with Indigenous peoples across the world and especially in Canada and Australia.  “All the lodges in Canada are in First Nations territory and good relations with First Nations are paramount” [page 12].  The Canadian Council for Aboriginal Business bestowed the company with a Gold Level certification in the Progressive Aboriginal Relations program [page 13]. Its commitment to a respectful and inclusive relationship with First Nations was a cornerstone of its success in obtaining contracts such as the one in Kitimat.

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Defamatory Statement Against Employer

In a 114-page decision the Arbitrator summarized his view of the alleged defamatory statement as follows:

An ordinary well informed Canadian reader would take from the website image a message that Civeo had broken its promises to First Nations people. Closer examination of the small print would reveal the message that Civeo had promised higher wages and delivered lower wages. It had promised a certain level of hiring and delivered something less. Further, I find that the message delivered by the impugned words was not just that Civeo had failed to make good on its promises but had cynically and deliberately provided something less.

I find there was an additional “sting” in the allegation, recognizable by the averagely well informed Canadian reader, which associates the employer’s conduct with the history of broken promises at a government level, which aggravates the defamatory meaning of the words used, and amplifies the degree of harm, and therefore damages if no defence is successful, caused to the employer’s reputation by association with this unfortunate history…

To this should be added that the impugned banner headline specifically identifies the “Broken Promises” of Civeo as promises made to “First Nations People” not just anyone. This connection, as well as the deliberate and pronounced prominence of the headline make it very clear as to what the union’s message was intended to convey. The message deliberately associates and links Civeo’s conduct to the historical undercurrent of broken promises to First Nations. Added to that is the fact that among the intended recipients of this message were indigenous people in the region and beyond, who of course were especially sensitive to this history.

In summary, taking the objective common-sense approach referred to above, I find that the impugned statement is defamatory in its natural and ordinary meaning. [pages 6/7]

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Employer Files Grievance

Civeo, through counsel, filed the grievance with the union in the following terms in August 2021:

On behalf of Civeo, we hereby file a grievance at stage 2 of the grievance procedure seeking damages and a cease-and-desist order regarding the following defamatory statements publicly communicated by your union:

Civeo's broken promises to First Nations people: Low wages; Decrease in hiring of Indigenous workers over the past 2 years.

This means that Civeo has not showed commitment to improving the living standards of Indigenous workers and their families. (See attached internet posting by Local 40)

These statements are patently untrue:

(i) The wages being paid are what were negotiated with your union in a letter of understanding covering the duration of the Sitka Lodge; (ii) Indigenous workers make up 47% of the total workforce; and (iii) As evidenced by the recent nomination of Civeo by the Haisla Indigenous community for the Indigenous Joint Venture/Partnership Award given by the Kitimat Chamber of Commerce, Civeo has shown a strong commitment to improving the living standards of Indigenous workers and their families.

Given the ongoing harmful effect of your false statements on the reputation and business interests of Civeo, we request a step 2 grievance meeting by telephone early next week. Please confirm the availability of your union for this meeting as soon as possible. In the meantime, to limit the liability of your union for the damages caused by your defamatory statements, we recommend that you take immediate steps to publicly retract these statements and apologize for making them. [pages 9/10]

Employer Reputation

The case is important not just for its detailed and scholarly analysis of the law of defamation including the various defences such as fair comment but also for its unique analysis of the importance of reputation when dealing with an employer’s ability to secure and maintain work when dealing with an Indigenous workforce:

Reputations are by their nature fragile, and the law of defamation is there to recognize this and protect reputations where appropriate. The comments earlier quoted from Zhong v Wu (supra) bear repeating:

The impression left by a libel on the reader may never be known but may last a lifetime, Philip Lewis, Gatley on Libel and Slander 8th ed., (London: Sweet & Maxwell, 1981) at 9.2. Thus, the presumption of damage recognizes the importance but fragility of a good reputation and the reality that the harmful consequences of defamation are difficult to prove, much less quantify. Zhong v. Wu, 2019 ONSC 7088, para 35. [Page 110]

Punitive Damages Awarded Against Union

In awarding punitive damages the Arbitrator relied on the following facts:

As in Barrick Gold, punitive damages are appropriate in this case, both because of the need to deter the union’s conduct, and because of the following factors:

1) The union’s contention that Civeo broke its promises to First Nations peoples is a complete fabrication;

2) The statement was published on the union’s website in order to maximize the statements’ distribution, well beyond anyone in the immediate region – including to anyone in the world doing a Google search of “Civeo”, whether they be potential employees, investors, business partners, contractors, governments, or otherwise;

3) The union did not remove this false or misleading, and defamatory, claim from its website for two months after Civeo wrote to the union to request that it take immediate steps to retract the defamatory statements and issue an apology;  

4) The union has refused to issue an apology or retraction, even after removing the statement from its website and continues to assert the truth of its defamatory message. It has indicated every intention, unless restrained, of repeating and continuing its message.

5) The union made these statements to pressure Civeo improperly to renegotiate terms of the Collective Agreement during the term of the agreement;

6) The union’s statements were made in an attempt to circumvent the provisions of the collective agreement dealing with disputes and disagreements between the parties; and

7) The threat to investors in furtherance of these vindictive statements compounds the culpability of the union’s conduct. [pages 106/107]

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The Arbitrator therefore awarded $400,000 General Damages and $100,000 punitive damages [page 111].

Civeo also argued that it was entitled to costs but couched its claim as seeking:

compensatory damages caused by the union’s unlawful and tortious conduct, which includes – amongst other things – the consultation and legal work performed in order to address and repair the harm stemming from the union’s unlawful conduct. [page 60]

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The claim was made in this fashion because section 90 of the Code precludes arbitrators from awarding the costs of the arbitration.  The Arbitrator decided to deny Civeo’s claim stating he decided to “err if at all on the side of adhering to the specific statutory direction provided by the Code” [page 64].  The Union argued that the Grievance should not proceed because the Arbitrator did not have jurisdiction only the court did.  If the matter had proceeded to court then the employer would have likely been entitled to at least taxable costs.

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EMPLOYER TAKEAWAYS

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Arbitration under a collective agreement has always been touted as being an inexpensive and expeditious way to deal with workplace disputes during the term of a collective agreement since employees cannot go on strike to pursue their grievances.  But as this case demonstrates that is a long-ago debunked fallacy.  Arbitrations are expensive and often complicated in terms of legal, evidentiary, and factual issues as this case truly demonstrates and is a prime example of that reality.

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At the same time those businesses that want to do business in Frist Nations territories and with First Nations might find the decision of interest as to the steps taken by Civeo to successfully nurture that relationship and its business model in Canada and Australia.

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Mike Weiler - Contact Info Here

June 30th, 2022

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

The minimum wage for all employees under BC provincial jurisdiction was raised to $15.65 per hour effective June 1, 2022.

What was the minimum wage in BC in previous years?

Previous rates and increases:

• June 1, 2018 – $12.65 per hour

• June 1, 2019 – $13.85 per hour

• June 1, 2020 – $14.60 per hour

• June 1, 2021 – $15.20 per hour

• June 1, 2022 – $15.65 per hour

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Does the increased minimum wage apply to all employers and employees in BC?

It depends! The minimum wage of $15.65 is set by BC Employment Standards and only applies to provincially regulated employers and employees under the jurisdiction of the BC Employment Standards Act. If you’re not sure whether your company should be paying this minimum wage to your employees, please contact our Employment & Labour team.

What employees are entitled to the increased wage?

All employees under the jurisdiction of the Employment Standards Act (part time, full time, casual, commission, hourly, salary etc.) are entitled to receive at least the minimum hourly wage, except for workers who have minimum wage rates established under the following sections of this Regulation (see details below):  

• Section 16 – live in camp leaders

• Section 17 – resident caretakers

• Section 18 – farm workers

Minimum wage applies regardless of how employees are paid – hourly, salary, commission or on an incentive basis. If an employee's wage is below minimum wage for the hours they worked, the employer must top up their payment so that it's equal to minimum wage.

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Does minimum wage still apply if an employee is paid on commission?

If an employee is paid on commission, and their income is below the minimum wage for the number of hours you work, they should be paid the difference between the commission earned and the B.C. minimum wage. This applies whether they are paid 100% on commission or part commission and part hourly wages.

What happens if my employer isn’t paying wages?

The BC Employment Standards Act requires employers to pay an employee’s wages at least twice per month. That income can’t be lower than the applicable minimum wage. If an employer fails to pay wages, employees can:

• File a complaint with the Employment Standards Branch: They will investigate their claim and order the employer to pay the money they owe. The Employment Standards Branch can then also launch an audit of the whole workplace to identify any other unpaid/underpaid wages and order them to be paid.

• Quit with severance: Employees may also be able to pursue a claim for constructive dismissal. In that case, they could be able to quit their job and leave with as much as 24 months’ pay.

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Some types of employees have different minimum wage rates

Liquor Servers

As of June 1, 2021, liquor servers must be paid the regular minimum wage rate for hours worked, in addition to any tips or gratuities they receive.

A liquor server is an employee who:

• Works mainly as a server of food or drink or both

• Regularly serves liquor directly to customers, guests, members, or patrons

• Works in a premises with a liquor licence

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Live-in camp leaders

• Live-in camp leaders are paid a daily rate for each day or part day worked - $125.06

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Live-in home support workers

Live-in home support workers are paid a daily rate.

• Prior to June 1, 2022, the daily rate was $113.50 per day or part day worked

• The current daily rate is $116.68 per day or part day worked

Resident Caretakers

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Trainees

Trainees working in B.C. are entitled to minimum wage like any other employee. A trainee is someone who is being trained by their employer to fill a particular role within a company.

Some types of employees are paid a piece rate

A piece rate is a rate of pay based on a measurable quantity of work completed. Employees must be told what the piece rates are before they start work. They may also be paid a different set wage for specific tasks (e.g. paid an hourly rate).

Find out about piece rates for farm workers.

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Our employment and labour lawyers are heavily involved in various local BC Chambers and Policy Committees, attend roundtable discussions and present webinars regularly on the Employment Standards Act and related legislation. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance revising your employment contracts or policies, please reach out to Chris Drinovz at cdrinovz@kswlawyers.ca, or submit a Contact form.

In my previous recent article posted on our website on April 8th 2022, I reported on the significant changes the NDP made to the Labour Relations Code with the introduction of Bill 10.  Those changes included getting rid of the secret ballot vote in a union certification drive and allowing construction unions to raid every year.  You can read that article here.

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On June 2nd 2022 Bill 10 received Royal Assent and is now in effect and the law.  The labour pendulum has now for the most part  swung back to the NDP changes of 1992 as many of us predicted.  

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The Labour Relations Board has issued new directives on how certification applications will be processed to be consistent with the abolition of the secret ballot vote - available here.

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Non union and partially unionized businesses need to take these changes seriously and do what they can to minimize the chances a union will become certified for their business.  Chris and I will be putting on webinars/seminars in the near future on this topic and if you are interested in participating contact Chris at cdrinovz@kswlawyers.ca. In the meantime, if you have any questions please feel free to contact us.

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Mike Weiler - Contact Info Here

June 14, 2022

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

FOR IMMEDIATE RELEASE
June 15, 2022

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KSW LAWYERS ACQUIRES THE SOLICITORS’ PRACTICE OF DNC INTEGRA LAWYERS
KSW lawyers is thrilled to announce the growth and expansion of their Abbotsford office location.

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Surrey, BC, June 15, 2022 – KSW Lawyers, a leading law firm in the Fraser Valley, has acquired the solicitors’ practice of DNC Integra Lawyers LLP, a highly regarded law firm serving individuals and businesses throughout Abbotsford.

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“We are so excited to finally be able to work together under the same umbrella. We have a deep respect for DNC Integra and are happy to unite our solicitors teams together to better serve the city of Abbotsford,” says Peter Unruh, Partner and lawyer of KSW Lawyers.

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KSW Lawyers will add DNC Integra’s experienced and dedicated solicitors to KSW Lawyers’ growing Abbotsford office as well as staff members. As each of the offices are mere blocks apart, all clients can expect the same quality and attention close to home and minutes from the original office of DNC Integra Lawyers.

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Christopher Drinovz, Partner and Lawyer at KSW Lawyers stated, “In considering this purchase, I was impressed by all the lawyers’ dedication to providing high-quality work to all their clients. This acquisition doesn’t only increase the wealth of knowledge to our firm, but our lawyers will also gain opportunities to meet new clients and advance in the city of Abbotsford.”

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“We are excited to announce the merger of the solicitors’ practice of DNC Integra Lawyers with KSW Lawyers!  Both law firms share the same values of exceptional client care at cost effective rates.  With this merger, our clients will have access to a greater number of lawyers and staff over a broader range of practice areas.  We are just as committed to our clients today as we were in 2010 when we first opened our doors in Abbotsford.  A big thanks to all our clients for your continued support” said Amrik Narang, lawyer at DNC Integra.

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KSW Lawyers was founded in 1973 and primarily serve clients in Surrey and the surrounding areas in matters of business law and real estate transactions. Since that time, however, our firm has grown in size and scope to be in a position to represent individual and corporate clients across a wide variety of practice areas. Today, we maintain office locations in Surrey, South Surrey/White Rock, Abbotsford, Langley and Vancouver, and our lawyers serve clients throughout the Fraser Valley and the Lower Mainland.

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Have you been fired, dismissed, or terminated?  Or informed by your employer that your job is about to change, or end if you do not agree to the change?  Have you experienced harassment or discrimination at work?

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If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.

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We recommend reading the following articles as well in order to get a better picture of your options:

1. All About Terminations and Employee Rights; and
2. How Much Severance Am I Owed?

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What Legal Options Do I Have After Being Wrongfully Dismissed?

If you think your employer breached your legal rights by firing you, you may have multiple legal options available. Generally speaking, wronged parties have two (2) years from the date of the wrong to bring a civil action in court; if you were terminated recently, you still have time to decide whether you would like to pursue an action.  We recommend diarizing for twelve (12) and eighteen (18) months from your termination date for you to re-evaluate your circumstances if you decide not to proceed right away.

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If your matter includes any component which may involve the Employment Standards Branch you only have 6 months to file a complaint. For Human Rights Tribunal issues, such a complaint needs to be formally submitted within the first 12 months.  

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Once your claim is filed with the appropriate decision making body, how long your matter will take to resolve is largely a function of how quickly scheduling the various required steps can happen.  While it is entirely possible, and even highly likely, for your matter to resolve without appearing before a judge, if your matter will require the decision of a judge, you should be prepared for the resolution to be more than one (1) year away.

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Importantly, even once the formal actions have been started, settlement at any time is always an option provided the parties can agree on terms.

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Am I Obligated to find a Replacement Job?

When you pursue your prior employer for severance, you have an obligation to make reasonable efforts to seek and secure comparable replacement employment; this is called the duty to mitigate.  Failing to fulfill your duty to mitigate can impact how much severance you may be able to recover.  If you have questions on how much severance you may be owed, please see our article How much Severance am I Owed?

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Importantly, along with your duty to mitigate, also comes the principle of set-off.  To understand how set-off works, please see our information below on What is Set-Off and How Does it Work? It is important not to shirk your duty to mitigate in an effort to avoid the set-off that will come with successful mitigation.

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Ultimately, most people are happier to be employed and earning an income rather than being involved in a law suit with a prior employer; so even though you might feel like you want your prior employer to pay you the maximum severance amount, we encourage our clients to think about the long run, and an overall positive result.

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What Is Set-Off And How Does It Work?

If you receive any replacement income during the notice period, your prior employer is relieved of its obligation to you accordingly, up to the amount that you would have received had you continued to be employed by you prior employer through the notice period; this includes any income you may receive from replacement employment.  To understand the notice period better, please see our explanatory notes on What is the notice period?

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If your replacement income falls short of what you would have received from your prior employer had you continued to be employed with it through the notice period, your prior employer’s obligation is to top up your income such that there is no material difference between your new wage and your old wage.

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Importantly, if your replacement income exceeds the income you would have received from your prior employer, your prior employer is relieved of any obligation to you as severance will no longer be owed.  To understand how severance is calculated, please see our article on How much severance am I owed?

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Replacement income can come from any number of sources, but the most common one is income received as a result of obtaining a replacement job.  We think the following simplified example will help:

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Example - Facts:

• Wage with prior employer: $20/hr

• Wage with new employer: $15/hr

• Notice period: 3 months (What is the Notice Period?)

• New job obtained after 1 month of unemployment

• Assume the same number of hours per week are worked with the new employer as with your prior employer

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In this example, assuming your claim for severance would be successful, your prior employer would be obligated for the first month of the notice period at your full wage of $20/hr, but from the time you start with your new employer, at the wage of $15/hr, your prior employer’s obligation reduces to only the $5/hr difference between your old wage and new wage.  

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Please see our article on How much severance am I owed for more.

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Will Future Employers Know Why My Last Job Ended?  Do I Have To Tell Them?

Future employers will only know the circumstances surrounding the end of your last job if someone tells them.  In most circumstances, you will not have any obligation to tell any future employer about the particulars of how or why your last job ended.

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When your prior employer issues the Record of Employment, that document is available to your prior (issuing) employer, you, and Service Canada; the Record of Employment is not a document that a future employer would be able to search for, or request, in the course of its decision to interview or hire you.

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While it is rare, sometimes people make unfavourable communications about other people following the end of an employment relationship.  Not only is saying, writing, or otherwise communicating negatively about someone else inappropriate, it also can result in the creation of a legal claim relating to defamation.

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We remind all employees that no matter how unpleasant the end of an employment relationship may be, to take the high road and move past the unpleasantness and onto more positive things.

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However, if you come to know that you are the subject of personal character damaging communications, and have or can acquire evidence of this, please let us know and we will be pleased to assist you in resolving the situation.

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Employment Lawyers Advising Workers

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We're on Your Side - Our skilled team of employment & labour lawyers have an outstanding reputation throughout the Lower Mainland and the Fraser Valley, and are dedicated to helping you resolve employment issues in the most efficient manner possible. If you have any questions or need assistance please reach out to our team today by submitting a Contact form.

Have you been fired, dismissed, or terminated?  Or informed by your employer that your job is about to change, or end if you do not agree to the change?  

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If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.

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We recommend reading the following articles as well in order to get a better picture of your options:

1. All About Terminations and Employee Rights; and
2. What Should I Do After Being Fired?

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How Much Severance Am I Owed

If you have been dismissed from your job, one of the first questions you are probably asking is how much severance does your prior employer owe you.

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First things first, if you have properly been dismissed for cause, it is unlikely that you will be entitled to severance.  If your employer says you have been dismissed for cause, please read our information on For cause dismissals – what employees need to know.

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It is also important to remember that severance is not a penalty your prior employer pays for ending your employment.

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Further, how much severance you may be entitled to could be limited by the language in your employment contract or agreement, if you have one.  We are happy to review your employment contract/agreement at any stage of your employment to enable you to have a better understanding of your legal relationship with your employer.

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In almost all other circumstances, questions about severance are reasonable to ask.  In the absence of a formal document, how much severance you may be entitled to is tied to what the common law notice period would be.  To understand how the notice period works a little better, please see our explanatory note below about what the notice period is.

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Generally, severance is calculated to proportionately include all components of your annual compensation you would have received had you continued to be employed  throughout the notice period (i.e. wages, annual bonus, commissions, phone/car allowance, health benefits, pension contribution etc.)

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For these reasons, even though severance and the notice period are not technically the same thing, you are likely to hear people use the words ‘severance’ and ‘notice period’ interchangeably.

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What is The Notice Period?

The notice period is the period of time between the day you are informed you are being dismissed from your job, and your final day for which your employer pays you.  During the notice period, the expectation is that employees will seek and secure comparable replacement employment; this is the known as the employee’s duty to mitigate.  For more information on the duty to mitigate, please see our information on Am I Obligated to find a Replacement Job?

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If you have an employment contract or agreement, your notice period may also be affected by any number of provisions in your employment contract/agreement, and specifically the language in the termination clause section.  We are happy to review your employment contract/agreement at any stage of your employment to enable you to have a better understanding of your legal relationship with your employer.

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In the absence of a written employment contract/agreement, and pursuant to the common law, the appropriate amount of time your employer should be providing you to find comparable replacement employment is calculated based on a number of your personal employment factors, known as Bardal factors.  Bardal factors, and those factors which may increase or decrease the notice period, typically include:

• your age;

• the length of time you served with that particular employer;

• job position and/or level of seniority;

• availability of comparable replacement employment - this includes how specialized your job is, or the combination of skills and education someone would need to do your job; and

• select other factors which may not apply to all persons (such as your geographic location or pregnancy).

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Your employer can ask for you to continue to report for work during your notice period, although the more common practice in today’s world is for the employer to pay the employee as if the employee had worked through the notice period, and for the employee to cease reporting to work the same day, or within a few days.

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It is important to remember that when you as the employee receive notification that you are being terminated, whether you work through the notice period or receive pay in lieu, if the notice period is the appropriate length, and you received the correct amount of compensation accordingly, your employer is unlikely to have any further obligation to you.

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Employment Lawyers Advising Workers

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We're on Your Side - Our skilled team of employment & labour lawyers have an outstanding reputation throughout the Lower Mainland and the Fraser Valley, and are dedicated to helping you resolve employment issues in the most efficient manner possible. If you have any questions or need assistance please reach out to our team today by submitting a Contact form.