On February 7, 2023, Bill 2, the National Day for Truth and Reconciliation Act, was introduced in the Legislative Assembly of British Columbia. Bill 2 proposes that the BC government recognize the National Day for Truth and Reconciliation, September 30, as a public holiday in the province and amend the BC Employment Standards Act to establish a provincial statutory holiday. Read more about the history and meaning of this Day here.

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Bill 2 received assent on March 9, 2023 passing into law - the National Day for Truth and Reconciliation now becomes a provincial statutory holiday in BC, and eligible workers will be able to observe September 30 with a paid day off or receive payment at premium rates if required to work.

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Payroll and Scheduling Considerations for Stat Holidays

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Once the Bill is passed, eligible employees will be entitled to a paid day off on September 30

1. This applies to employees after they have been employed for 30 calendar days, and those who have earned wages on 15 of the 30 days before the statutory holiday
2. They are paid an "average day's wages" - take the amount earned in the past 30 days an divide it by the number of days worked.

If an employee works on the stat holiday, then the employee is entitled to the above statutory holiday pay PLUS 1.5 times the employee’s regular wage for time worked up to 12 hours, and double the employee’s regular wage for any time worked over 12 hours. See "Calculating Stat Pay" .

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Statutory Pay and Day Off in Lieu

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By default, when a statutory holiday falls on a workday during the week, employees get the day off with pay, and all eligible employees are entitled to stat pay even if they weren't scheduled to work or if that was their day off.  If the statutory holiday falls during the weekend, like September 30th this year (Saturday), the default under the Employment Standards Act would be for the employer to pay everyone for that day (Saturday).

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However, it is common practice is for employers to substitute another day for a statutory holiday day off (i.e. giving everyone Monday off paid in lieu). If this is done, the employer must have the agreement of that particular employee, or the majority of the group of employees it is substituting the holiday day for.

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In practice it is not usually an issue, but technically there is a requirement for the employer to retain records of the agreement to substitute for 4 years:

        Substituting another day for a statutory holiday

        48   (1)An employer may for one or more employees at a workplace substitute another day off for a statutory holiday if the employer and the employee or a majority of those employees, as the case may be, agree to the substitution.

               (2)Any employees affected by the substitution of another day for a statutory holiday have the same rights under this Act and their employer has the same duties under this Act as if the other day were a statutory holiday.

               (3)An employer must retain for 4 years records of agreements made under subsection (1).

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For full details on stat holidays and Employment Standards, visit the provincial government site here.

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Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact Chris Drinovz. Our experienced Employment & Disability Group is ready to assist you. Get in touch today.

Health Canada granted an exemption from the Controlled Drugs and Substances Act to the Province of BC, effective between January 31, 2023 to January 31, 2026. Under this exemption, adults (18 years and older) in BC are not going to be arrested or charged for possessing small amounts (up to combined total of 2.5 grams) of certain illegal drugs for personal use.

While this is unlikely to significantly disrupt the status quo respecting drugs and alcohol in the workplace, there are several issues that employers should consider in light of this exemption.

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Overview of Drug Possession Exemption

The illegal drugs covered by the exemption are:

• Opioids (such as heroin, morphine, and fentanyl)

• Crack and powder cocaine

• Methamphetamine (Meth)

• MDMA (Ecstasy)

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This exemption does not apply in the following circumstances, where possession remains illegal:

• On the premises of elementary and secondary schools and licensed child-care facilities

• At airports

• On Canadian Coast Guard vessels and helicopters

• On a motor vehicle or watercraft that is operated by a minor (under 18 year of age), whether or not it is in motion

• Members of the Canadian Armed Forces

• People under the age of 18

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Although possession under this exemption is allowed, illegal drug use continues to be prohibited on private property. This may include places like shopping malls, bars, cafes, and workplaces. Police will continue to retain legal authority to remove people from these premises if open drug use is occurring against the wishes of the owner.

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What about Drugs and the Workplace?

In British Columbia, under the Workers Compensation Act and the Occupational Health and Safety Regulation employers have a duty to ensure a safe and healthy workplace, including protecting employees from undue risk created by impaired workers.

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The regulations specify that employers must take all reasonable steps to protect workers from the hazards associated with drug and alcohol use, including providing information and training to workers, developing and implementing drug and alcohol policies, and taking appropriate action in the event of violations. Drug and alcohol testing may be conducted in certain limited circumstances.

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Despite this newly implemented exemption under the Controlled Drugs and Substances Act, employers in British Columbia can establish policies that prohibit possession and use of drugs in the workplace. Employers have the right to set standards of behavior and performance for their employees, and require that employees be free from the influence of drugs (or other substances) while at work.

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What Employers Should Watch Out For

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Any drug testing and any disciplinary action taken must be done in accordance with applicable laws, such as the provincial or Federal human rights legislation (depending on the employer’s jurisdiction) and the applicable privacy act, and must be based on evidence of impaired performance or safety risks.

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Employers should also be aware that under federal and provincial human rights legislation, substance use disorder is considered a disability.  Discrimination based on disability is not legal, and employers have a duty to accommodate disabilities to the point of undue hardship, considered on a case-by-case basis. Before taking any disciplinary action such as terminating an employee who has shown signs of impairment, we highly recommend seeking legal advice to discuss the particular case and any potential human rights discrimination issues.

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Employers should also consider reviewing and updating their impairment/drug and substance use policies in the workplace, to ensure the correct language is used (i.e. “illegal drugs” etc) and that they include reference to the exemption where appropriate.

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Takeaways

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1. Employers are encouraged to develop policies and procedures (or review and revise existing ones) that address impairment/drugs and substance use in the workplace.
2. Employers should communicate their impairment/drugs and substance use policy clearly to workers.
3. Employers should ask everyone at their workplace to review the existing applicable workplace policy, and confirm whether this exemption modifies your current policy. If you’d like assistance with drafting a workplace policy update, please don’t hesitate to reach out to the writer.
4. Managers and supervisors should be educated in how to recognize and manage substance use issues and employees, and how to apply the workplace policy consistently and fairly.
5. Employers should seek advice before taking disciplinary action against employees that might have a substance use disorder.
6. Employers should establish or promote programs such as an Employee Assistance Program (EAP) to support employees dealing with substance use issues.
7. Review WorkSafeBC resources.

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Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact Chris Drinovz. Our experienced Employment & Disability Group is ready to assist you. Get in touch today.

If you’re thinking of buying or selling a home, you should be aware of 2 major changes in the law that came into effect on January 1st, 2023.

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The first major change is that non-residents of Canada have been banned from buying residential property for the next 2 years. If a company is buying a residential property, and any foreign shareholder owns or controls at least 3% of that company, then the company is considered a foreign buyer and is disqualified from purchasing residential property in Canada for the next 2 years. There are several exemptions from the ban, including Canadian citizens and permanent residents, refugees, and some international students, among others.

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The second major change is the introduction of a 3-business day “cooling-off period”. During this cooling-off period, a buyer can rescind its offer and back out of the deal for any reason, even if their offer has been accepted. The cooling-off time is intended to help buyers fully consider whether a purchase is right for them, even in a hot market. If a buyer changes their mind, they must pay a rescission fee of 0.25% to the Seller, amounting to $2,500 for every $1 million of the purchase price.

If you have questions on these new laws or any other legal matters, reach out to Aman Bindra at [email protected] or 604-591-7321 today.

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If you're considering separation, or have recently gone through one, you might be thinking about learning more about separation agreements.

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Separation agreements are a great way to make sure everyone knows their rights and responsibilities for issues including property division, child support, parenting time, and spousal support. Assuming you and your ex-spouse are both on-board, separation agreements allow you to have more control on how you want to navigate these types of issues.

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Separation agreements are also a great way to settle matters outside of court and litigation. Going to court generally means more financial and emotional stress as compared to separation agreement.

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This article will take a closer look at some of the most common questions that come up about separation agreements, such as: what is a separation agreement, what issues can it deal with, and why you should consider making one.

What does separation mean?

Separation occurs when two spouses end their marriage-like relationship. The term spouse refers to a person who is married to or has lived with their partner in a marriage-like relationship. To constitute a marriage-like relationship, partners must have either lived together for at least two years, or less than two years if they have a child with the other person.

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Separation marks the end of the spousal relationship and occurs when one or both people decide to dissolve the relationship, share their decision with the other person, and stop acting as if the spousal relationship still exists.

What is a separation agreement?

A separation agreement is a legal contract between two individuals that spells out how they have decided to resolve property division, support, and parenting issues related to their separation.

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A separation agreement needs to be signed by both parties, and it should be signed in front of one or two witnesses. The witness does not have to be a lawyer. Once the document is signed, it becomes a legally binding contract between the parties.

Why make a separation agreement?

Making a separation agreement encourages couples to settle their issues outside of court. It's usually quicker and cheaper to resolve family law issues by way of separation agreements rather than going to court.

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In addition, separation agreements are legally enforceable. This means that the parties to the agreement cannot breach its terms and get away with it. If one party doesn't follow the terms of the agreement, then the other party can go to court and ask for remedies, including enforcement of the terms.

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The final advantage is that everyone knows what they're getting into and what their rights are under the agreement when they sign it. So, there's less confusion about what happens next after a couple separates. This can make their life post-separation much smoother than if they rely on informal arrangements instead.

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What can separation agreements deal with?

A separation agreement can deal with almost anything related to the parties' relationship, including:

Parenting Arrangements

The agreement can set out the details about parenting time and allocate decision-making responsibilities about the children. The parties can lay out how much time each parent will spend with the children, including over the school year and holidays. They can also decide who will make important decisions about their children's lives, like where they go to school and what medical treatments they receive.

Child Support

The agreement can set out the child support payable by one parent to another. Child support is taken very seriously by our courts; it is viewed as a right of the child and not a negotiable term of an agreement. The amount of child support depends on the payor parent's income. If both parents have shared parenting time, meaning that each has care of the children at least 40% of the time, then the child support payable depends on both parents' income.

Spousal Support

The agreement can set out whether spousal support is payable and if it is, then it can set out the amount, duration, and circumstances under which this support will continue or end. Spousal support is not automatic and it is something that can be negotiated. If one spouse is financially dependent on the other or can't become self-sufficient (such as due to illness), they may be entitled to spousal support.

Division of Family Assets & Property

The agreement can set out how assets and property will be divided. The BC Family Law Act sets out which assets are considered family property and how they should be divided. Generally, all assets, whether in joint or sole names of the parties are divided equally. There are exceptions though, called excluded property. The Act addresses how to handle excluded property—assets that are not considered family property. It's important to keep in mind that, under the Act, the increase in value of excluded property during the relationship is divisible between the spouses.

Division of Family Debt

The agreement can set out how debt will be divided. In most cases, each spouse will be responsible for half of any debt incurred during a relationship. They may also be liable for an equal share of debt accrued post-separation, such as debt incurred to the maintain family property.

Life Insurance Policies

The agreement can set out how life insurance policies will be divided, who will cover the premiums, and whether any of the proceeds will be payable to a third party.

Tax Planning Costs

The agreement can set out who will pay the costs of tax planning, estate planning, retirement planning, and income tax preparation.

The Family Home

The agreement can set out how the family home will be divided, who will live in it, and how much each spouse will pay for their share of the mortgage. If one spouse wants to sell their portion, the agreement can specify who has the first right to buy and at what price.

Pet Ownership

The agreement can determine which spouse will keep the family pets, and whether or not the animals are to be divided. The agreement can also include a clause detailing who will pay for any additional costs associated with taking care of the pet.

A separation agreement may also describe what will happen if the parties reconcile. It is not unusual for a Separation agreement to state that it will become a marriage agreement or cohabitation agreement in the event of reconciliation and that it will remain legally binding even if they get back together.

What do I need to make a separation agreement?

While people in BC can draft their own separation agreement without the help of a lawyer, it is highly recommended that people hire a family law lawyer to review their separation agreement before signing. A family lawyer can help ensure that all the legal requirements have been met and that nothing has been forgotten. This will ensure your rights are protected and you are well represented in court if necessary.

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Spouses should each contract a separate family lawyer in order to receive independent legal advice and representation. This will ensure each party's legal rights and interests are fully represented in the agreement.

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In addition, each party should make a full financial disclosure prior to drafting an agreement. Both parties must be completely open with their assets, liabilities, and incomes. Full financial disclosure includes giving information about RRSPs, pensions, insurance policies, investments, bank accounts, stocks, companies, and debts owed (such as mortgages, lines of credit, credit cards, and personal loans).

Do I need a separation agreement if I'm going through a divorce?

To get a divorce order, you have to start a court action and get the order through the courts.

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A separation agreement is not required to get the divorce order unless children are involved and if there is no court order in place regarding the children's care and support. If children are involved, the court has a duty to ensure that reasonable financial arrangements have been made for their care and support. So, the agreement can set out the terms about care and support.

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Basically, a couple can speed up their divorce by having a separation agreement in place. The added bonus is that by negotiating a separation agreement, you generally pay less in legal fees, you resolve the issues quicker than going to court, and the process is less stressful for both parties.

What if my spouse refuses to work on a separation agreement?

If your spouse refuses to cooperate with the separation agreement process, you have several options. While you can't force someone to sign an agreement, a lawyer may be able to negotiate an agreement on your behalf. Alternatively, you can suggest ways to work out an agreement without litigation. For example:

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Mediation is a common option for separating couples. Mediators are neutral third parties who help you and your spouse reach an agreement outside of court.

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Collaborative negotiation is another option. In this case, you each have your own lawyer and agree that it is in everyone's best interest to resolve the matter without going to court.

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Arbitration is yet another option. An arbitrator is a neutral third party who makes a decision about the issue(s). This can be helpful if you and your spouse are unable to come to an agreement on your own and want to avoid court.

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If all else fails, you can take your case to court. This is generally the most expensive option. It can also be time-consuming and stressful for everyone involved. If you decide to go this route, be prepared for a long battle.

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FOR IMMEDIATE RELEASE
January 6, 2023

Surrey, BC, January 6, 2023 – KSW Lawyers, a leading law firm in the Fraser Valley and lower mainland, is pleased to announce Andrew Zacharias has joined the Partnership of KSW Lawyers.

“With the continuous growth of the firm in its people and practice areas, I’m proud to solidify my connection to the firm,” says Andrew Zacharias.

Andrew has been with the firm since 2014 and has practiced law since 2009. As one of our senior lawyers in the Abbotsford office, Andrew is a strong litigator with a broad range of experience and successful outcomes both in trial and outside of court. As part of the litigation group at KSW Lawyers, he not only works diligently fighting alongside his clients but also mentors many of the summer and articling students that article at our firm. Having grown up in Chilliwack, Andrew enjoys not only practicing law in his community but also being a part of its societies and associations. Andrew was previously president of the Chilliwack Bar Association, was a member of the Chilliwack Fraser Rotary Club, was on the Board of Directors of the Chilliwack Hospice Society and is currently a member of the Fraser Valley Estate Planning Council.

As someone who enjoys mentoring students, it is no surprise that Andrew also enjoys coaching local high school football and community hockey teams in his spare time.

“We are excited for this new chapter and look forward to the new opportunities this addition to the partnership brings,” said Chris Drinovz, partner at KSW Lawyers. “We have enjoyed working with Andy over the years and are excited to bring his knowledge and skill to the partnership table. On behalf of the firm, congratulations, Andrew.”

KSW Lawyers was founded in 1973 and primarily serves 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.

For more information contact:
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KSW Lawyers
Email:       [email protected]
Phone:     (604) 591-7321
Website:  kswlawyers.ca

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The recent decision of LaFleche v. NLFD Auto dba Prince George Ford (No. 2),  2022 BCHRT 88, highlights the careful approach that employers should take when employees are returning to work after a leave of absence.

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In this case, the BC Human Rights Tribunal found that Ford (the employer) removed Ms. LaFleche (the employee) from her marketing manager position and constructively dismissed her from her employment. In so doing, the Employer (Ford) discriminated against Ms. LaFleche based on sex and family status contrary to s. 13 of the Human Rights Code.

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As a result of the discrimination, the Tribunal awarded the employee $12,000 for injury to her dignity, feelings and self-respect as well as $66,625 for lost wages she would have received had she returned to work in July 2019 as planned, and for lost benefits.

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The first paragraph of the decision sets the tone for this case:

[1]               For over 30 years the law in Canada is clear: a pregnancy should not lead to work-related disadvantages: Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 SCR 1219. Discrimination based on pregnancy undermines substantive equality along gendered lines. In this case, Mellissa LaFleche suffered a work-related disadvantage because she was pregnant. (…)

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Facts

The employee began her employment with the respondent in 2015. She occupied the position of “marketing manager” by December 2016. In May 2018, she went on maternity leave. The respondent hired a replacement employee to cover for the complainant during her leave.

On February 8, 2019, the employee met with the respondent’s new general manager regarding her return to work following her maternity leave. During the meeting, the parties agreed that the employee would return to work on July 2, 2019.

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The general manager gave evidence that he understood the meeting would be a "meet and greet" with perhaps some initial discussion about the employee’s return to work. Accordingly, he did not prepare for the meeting or have a finalized plan for her return. During the meeting, the general manager advised that the employee’s replacement would take on at least some of the marketing manager duties after the positive changes to the employer's marketing strategy since the complainant went on leave. The employee’s role on her return to work was undefined.

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The general manager told the employee that they would get back to her by the end of the next month to discuss her return to work position and duties, but no one reached out to her. The employee also did not reach out to her employer – in fact, she filed a human rights complaint just a few days after the meeting, although the employer did not learn of this until some months later.

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The employee took the employer's lack of follow-up as confirmation that her employment was being terminated, and she did not return to work as scheduled. Approximately six weeks after her return-to-work date, the employer wrote to the employee advising that it considered her to have abandoned her employment.

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Decision and Analysis

The British Columbia Human Rights Tribunal found that the employer removed the employee from her marketing manager position at the February 8, 2019 meeting, when the employer told the her that it was happy with the replacement’s performance.

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The Tribunal noted the employer’s failure to communicate with the employee about the changes it was making and what would happen upon her return to the workplace.  It emphasized that while an employee is on leave, the employer is obliged to consult with the employee about significant changes that will be made to their position, as the employee would participate in such a discussion if they were not on leave.

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Did the employer’s conduct adversely affect the employee, including whether it constructively dismissed her?

The Tribunal found that the employer’s acts and omissions adversely affected the employee in her employment, and that the employer constructively dismissed her.

Adverse Impact

The Tribunal found the adverse impact was the employer’s removal of the complainant from her managerial position to an unknown position.  The Tribunal accepted that the employee felt humiliated; grieved the position’s loss; felt distressed and nervous about money; and lost sleep, her appetite, a sense of security, and the ability to enjoy her maternity leave.

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The Tribunal rejected the employer’s argument that the employee “abandoned” her job, noting that the employer said it would get back to the employee by the end of March with possible return to work “scenarios” but did not do so.

Constructive Dismissal

Noting that “a constructive dismissal occurs where an employer has not formally terminated an employee’s employment, but the employer’s conduct is treated as a dismissal or termination at law,” the Tribunal concluded that its findings that the employer unilaterally determined the employee would not return to her role as marketing manager, and that the employee reasonably understood the employer was significantly altering her job duties, amounted to a dismissal from employment.

Were the employee’s sex and/or family status factors in any adverse impact?

The Tribunal found that the employee’s maternity leave was a factor in her removal from her role and in the constructive dismissal; had she not taken it, she would have continued in her role as marketing manager.  The Tribunal concluded, therefore, that the employer discriminated against the employee on the basis of sex and family status.

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Award Against Employer

The Tribunal awarded the employee $12,000 for injury to dignity and $66,625 in lost wages and benefits, rejecting the employer's arguments that she only lost wages because she chose not to follow up regarding her return to work, did not return to work as scheduled after her maternity leave, and did not apply for many, or appropriate, jobs (mitigation).

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The Tribunal also awarded loss of EI benefits for the employee’s subsequent post-termination pregnancy, reasoning that, through the loss of her job, she did not attain the number of insurable hours that she needed to qualify for maternity and parental leave benefits for her second child.

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The Tribunal did not, however, award continuing wage loss for the period when the employee decided to change careers to become a doula, and returned to school. (The Tribunal found the decision to become a doula was a complete career change, the financial consequences of which should not be the responsibility of the employer.)

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Finally, the Tribunal ordered the employer to pay a tax gross up for the increased tax liability Ms. LaFleche was expected to experience from the additional income she would have to report for the 2022 tax year due to the lost wages she was awarded.

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Takeaways

• Employers should carefully navigate discussions with employees who are on leave. Managers/HR professionals should prepare for these meetings and ensure they have notes and a record of the meetings and discussion. In this case, a meeting which the manager had understood as a "meet and greet", and which he did not prepare for, nonetheless included a discussion of the employee's role upon her return to work which left her with the impression that she would not be returning her to her previous position.

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• In general, absent bona fide business reasons that are completely unrelated to the employee going on leave, employers must return the employee to the same position they held before going on leave, or the employer must reach agreement with the employee regarding any material changes to their job or their compensation.

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• Employers should communicate clearly and consistently with employees, and to prepare for questions that may arise in the return to work context. We recommend these discussions happen before the end of a leave.

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• The mere fact a replacement employee is preferred does not override the absentee employee’s human rights.

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• If an employer is considering making any change to the role or employment terms of an employee who is on leave, we encourage them to seek the advice of experienced employment lawyers.

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• Employers should consider their current policies and ensure they have maternity (and other leaves) policies in place with appropriate management training.

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If you have any questions or need assistance revising your employment contracts or policies, please submit a Contact form.

With the many recent significant changes to the workers compensation system, understanding an employer’s obligations under the BC Workers Compensation Act (“WCA”) has never been more important. Bill 41- 2022: Workers Compensation Amendment Act (No. 2), 2022 (“Bill 41”) received Royal Assent on November 24, 2022, and contains further amendments to the WCA that increase employers' obligations to injured workers and have significant impact on both employers and employees. Some of these amendments are coming into effect in the spring of 2023 (see Schedule at the end of this article).

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In our previous article Bill 41 (2022): Significant Changes to the BC Workers Compensation Act, we cover the changes in detail, offer some background on these amendments, as well as their schedule. In this article, we will answer the top questions we received from employers regarding the amendments and BC Workers Compensation Act, and share with you our webinar recording and presentation slides.

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Webinar Materials: Amendments to the Workers Compensation Act Presentation

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On December 13, 2022, Chris Drinovz and Alejandra (Ale) Henao presented a webinar for the Manufacturing Safety Alliance of BC on these changes.

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Access the Presentation PowerPoint Slides here.

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Our full presentation recording is available below.

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EMPLOYER Q&A

Question: When will the indexing benefits go into effect?

This has already come into effect. The WorkSafeBC Cost of Living allowance will be indexed based on the full Consumer Price Index is effective November 24, 2022.

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Question: Is this significantly different from the model created (and now discontinued) for COR Return to Work (less the auditing part)?

I think the COR Return to Work model was more extensive and comprehensive than the two new statutory duties (duty to cooperate and duty to maintain employment) as it concerned the development and maintenance of a complete return to work program. However, the COR model did not contain the duty to accommodate nor was there any risk of being fined for noncompliance.

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Question: Regarding duty to maintain employment, what if the employee is terminated, for cause, while on WSBC claim? Does this prevent the employer from taking a labour relations action?

This is a great question. The six month timeline where you cannot terminate only begins to run after the employee returns to work, so if the employee is terminated for cause while still on claim and prior to returning, there is an argument that the section is not triggered. However, it may be interpreted that you must maintain employment during the period of time the worker is off as well. Also, there may be other exposures including a prohibited action claim or human rights claim.  If you are planning to terminate for cause, you need to be sure that the decision is not tainted in any way by prohibited grounds or the fact that the worker raised health and safety issues.

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Question: Do these administrative fines re duty to accommodate apply to Federally regulated employers?

At this time, it appears so. The penalty section falls within the compensation section (rather than the OHS section) and so it likely applies to federally regulated employers. The legislation allows for certain industries to be exempted by regulation, but we do not have any details yet.

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Question: What if an employee doesn’t complete rehab, leaves the country (without letting employer or Worksafe know) and was expected back at work on December 1st but doesn’t have a return flight scheduled? Can that be considered quitting?

WorkSafeBC has the discretion to discontinue paying a worker when they disengage in return-to-work efforts/Vocational Rehabilitation for non-compensable reasons.  Accordingly, WorkSafeBC can discontinue paying a worker when they leave the country.  Work abandonment is engaged when there is clear and unequivocal intention from an employee to not return to work.  Employers are recommended to inquire about the worker’s personal or medical leave status before claim job abandonment.

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Section 154.2 Duty to Cooperate imposes a reciprocal duty to cooperate between the worker and the employer.  Employers can contact the Board to advise that an employee is failing to cooperate by not engaging in suitable work.  The Board has 60 days to decide whether the worker failed to cooperate from the date the complaint is made (Section 154 (5)).  If the Board agrees with the employer, the Board has jurisdiction to reduce or suspend the worker’s payment until the worker cooperates (Section 154 (6)).

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Question: The 6-month rule, is that a combination of time, or a 6-month run? And are these 6 months after the injury or after the worker returns to work?

Great question. The language of s. 154.3(8) says “within 6 months after the worker begins to carry out suitable work or begins to carry out the essential duties…” so I would say it begins to run after the worker returns to work and the period of time runs for 6 months consecutively rather than a combination.

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Question: Are there special implications for young workers? It's my understanding that those now coming into a manufacturing setting must be 18 years old.

Bill 41 does not deal with young workers. The Occupational Health and Safety Regulation defines a young worker as any worker under age 25. Section 3.23 Young or New Worker Orientation and Training outlines the young worker’s rights and employer’s responsibilities, including health and safety specific orientation and training for all fields: OHS Part 03 Rights and Responsibilities s 3.23.

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Question: Would it be considered suppression of claims if it takes a significant amount of time for a worker to see a doctor, and the employer pays normal wages for that time?

As long as there is no intent to dissuade the worker from making a compensation claim, I don’t see that as claim suppression. If the injury was work related there is of course the obligation for the employer to report the injury to WorkSafeBC.

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Question: Will the provisions of "reasonable expectation" as found in RSCM Vol 2, Policy Item 74.00  Reduction or Suspension of Compensation remain in effect?

Which basically requires WSBC to ask the worker why they are not co-operating prior to rendering a decision – so usually leads to delay in decision making?

Policy Item 74.00 Reduction or Suspension of Compensation remain in effect.  If a worker fails to attend an examination or obstructs the medical examiner the worker’s right to compensation can be suspended until the examination takes place.  The Board can also reduce or suspend compensation if the worker engages in unsanitary or injurious practices that delay recovery.  Or when a worker refuses to engage in treatment reasonably essential to promote recovery.

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Question: Is there any way to clarify the reporting process of a suspected injury to employers? Right now, there is no real suitable time period. (No report from employee for months after a possible injury)

Section 149(2) of the Workers Compensation Act obligates the worker to report a workplace injury to the employer “as soon as practicable after the occurrence”. While there is no actual timeline given, this would generally mean immediately, within a few days or weeks. The employer in turn has an obligation to report the injury to the Board within 3 days of being informed.

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Question: If an employee is in an accommodated position, that is not working out due to their ability, are we required to accommodate into a different position?

Interesting question. To be safe I would say that the duty to accommodate lasts for at least six months after the worker returns to work. So if it is not working out in one position, there would be an obligation to offer another position, assuming that alternative suitable work is available within the employee’s skills set and your operations.

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Question: In a social services workplace, where say someone has a limitation on working with a client with aggression... how would one handle that RTW piece if we cannot guarantee that no aggression would come up in any role, they would be suitable for?

In that situation you would have to carefully consider if you could modify the position to accommodate the worker. For example, can you screen the clients or put some protective measures in place to ensure that the worker doesn’t have to deal with an aggressive client? Can you modify the position so that the worker does not deal directly with clients? If those options are not possible without creating an undue hardship, then you may tell WorkSafeBC that there is no suitable work available given the nature of the limitations.

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Question: Is there any documentation yet written for seasonal worker cases? 6-months for a 3-month annual work-season could have 2 possible interpretations (at least).

The duty to maintain employment will apply to full-time and part-time employees who have been employed for a continuous period of 12 months pre-injury. This raises the interesting question of whether a seasonal worker who only works 3 months of the year is continuously employed or not. If the worker is formally laid off at the end of each season and works elsewhere, it could be argued that their employment is not continuous and starts anew each season. If that is the case, then the duty would not apply to this worker, as they would not meet the continuous 12 months.

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Question: If a worker injures themselves at home and the employer is concerned that the worker may intensify that injury if they return to work too early, is the employer justified in discouraging an early return?

Any return to work will have to be in conjunction with the recommendations of the worker’s medical team and WorkSafeBC’s assessment. If the evidence indicates that the worker is at risk for reinjury by returning early, then the employer would be justified in discouraging an early return. However, if there is no evidence for the employer’s position (i.e. the workers doctor and/or WorkSafeBC say that the worker is cleared to work) then taking this position could be problematic and lead to a non-compliance.

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Question: How does one handle a situation where suitable Modified Duties are extended to an injured worker, but they choose to ignore them and stay at home?

If WorkSafeBC finds that the modified job offer is suitable and reasonably available to the injured worker, failure to accept the job may result in an end to their Vocational Rehabilitation benefits.  Now, there will also a reciprocal duty to cooperate between the worker and the employer (Section 154.2 Duty to Cooperate). Employers can contact the Board to advise that an employee is failing to cooperate. The Board has 60 days to decide whether the worker failed to cooperate from the date the complaint is made (Section 154 (5)).  If the Board agrees with the employer, the Board has the power to reduce or suspend the worker’s payment until the worker cooperates (Section 154 (6)).

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Schedule

Please see the "Commencement" table at the end of the Bill for information as to when the various parts of the legislation will take effect – details below:

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Our experienced Employment & Disability Group is ready to assist you. Get in touch today.

With the many recent significant changes to the workers compensation system, understanding an employer’s obligations under the BC Workers Compensation Act (“WCA”) has never been more important. Bill 41- 2022: Workers Compensation Amendment Act (No. 2), 2022 (“Bill 41”) received Royal Assent on November 24, 2022, and contains further amendments to the WCA that increase employers' obligations to injured workers and have significant impact on both employers and employees.

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Once you've reviewed this article, we recommend visiting our follow up resources below:

• Employer FAQs: Bill 41 Changes to the Workers Compensation Act - from our presentation for the Manufacturing Safety Alliance of BC
• Bill 41 - Amendments to the Workers Compensation Act - Surrey Board of Trade Presentation - view/share the recording or review our presentation slides
• WorkSafeBC's presentation slides from October 21, 2023 presentation, covering the New Duty to Cooperate and Duty to Accommodate
• WorkSafeBC's Discussion Paper and Guidance on Return to Work Obligations: Duty to Cooperate and Duty to Maintain Employment

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Background on WCA Amendments

By way of background, since 2018, the BC Ministry of Labour has commissioned 5 lengthy and comprehensive reports reviewing various aspects of the compensation system. The reports can be found here. In summer of 2020, the Government started implementing some of these recommendations through amendments to the Workers Compensation Act. The amendments included increased worker benefits, Covid-19 related amendments, as well as new tools added for criminal prosecutions for serious health and safety violations.

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Most of the amendments introduced with Bill 41 originate from the Workers Compensation System Review by Janet Patterson, report released in October, 2019. The Report is a mega-report which totals no less than 517 pages, and contains 102 Recommendations. It expanded on the “worker centered approach” that was mandated in the Petrie Report. Ms. Patterson is a former labour lawyer with a strong connection to the BC Federation of Labour.

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In our view, the most significant aspect of Bill 41 is the introduction of two new statutory duties – the Duty to Cooperate and the Duty to Maintain Employment.

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These duties will require both employers and workers to become much more active participants in claims.

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Importantly, both duties are triggered when a worker:

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1. suffers an injury that arose out of and in the course of employment; and  
2. is disabled from earning full wages as a result.

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There needs to be an accepted WorkSafeBC claim and the worker has to be disabled from their pre-injury job in some way for these duties to be triggered.  

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Another important point is that these duties apply to union and non-union settings. Section 154.4 of the Act says that if there is a conflict between these duties and the collective agreement, the WCB duties will take precedence if they are more generous to the worker.

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Important note: at this time, these sections are not in force yet - they are going to come into force by regulation at some time in the future, so they do not yet apply to any current WorkSafeBC claims (as of December, 2022).  

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More details about these duties below.

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Duty to Cooperate

Section 154.2 creates a duty for both employer and worker to co-operate and work together with each other and with the Workers’ Compensation Board (the "Board") to facilitate the injured worker’s return to suitable work as soon as possible.  

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The reciprocal duty to cooperate between the employer and the worker includes the following components:

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1. Contacting each other as soon as practicable after the injury and maintaining communication;
2. Identifying suitable work for the worker that, if possible, restores the full wages the worker was earning pre-injury; and
3. Providing the Board with information the Board requires in relation to the worker’s return to, or continuation of work.

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The first component is essentially a duty to communicate, and it is reciprocal, so the injured worker also has an obligation to contact and communicate with the employer about coming back to work.  The section says if they don’t, then their benefits can be reduced or suspended until they do. The duty to communicate does not apply if, having regard to all of the circumstances, contact and communication between the employer and the worker are likely to imperil or delay the worker's recovery.

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The second and third components introduce a formal obligation to identify suitable work with the goal of restoring the workers full earnings. This duty is just about providing the information, and only deals with identifying the work and giving the Board this information and whatever information the Board might require.  It does not deal with actually offering that work to the employee, that comes in the next section.

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Dispute Resolution

If either the employer or the worker believes the other is not cooperating in the process, they can lodge a complaint to the Board, and the Board has to make a determination about the complaint within 60 days.  

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If the employer is offside, they can be hit with a fine, if the worker is offside their benefits can be suspended.

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Duty to Maintain Employment - Accommodating and Returning Injured Workers to Work

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Most notably, the Bill 41 amendments establish a new legal duty requiring employers to maintain employment of injured workers and make any necessary changes to the work or workplace to accommodate their successful return to work, up to the point of undue hardship (section 154.3).

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Exceptions: This duty applies only to employers with 20 or more workers, and in respect of workers who have been employed by the employer for at least 12 continuous months, and who have been unable to work as a result of a work-related accident.

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This duty comes into play when the injured worker has been cleared to return to work by WorkSafeBC and there are two situations:

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1. A worker is “fit to work”, but cannot carry out the essential duties of their pre-injury work, the employer must offer the worker the “first suitable work that becomes available.”
2. A worker is fit to carry out the essential duties of their pre-injury work, the employer must either (a) offer the same pre-injury work to the worker, or (b) offer the worker alternative work “of a kind and at wages that are comparable to the worker’s pre-injury work and wages from that work.”

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What is “suitable work”? – that is not defined, so we think it will become the subject of much dispute. Do you have to offer work that that worker is not trained or qualified for? Probably not, because that is not suitable.  Do you have to create work that you don’t actually have?

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This new duty to accommodate is separate from any obligations under BC’s Employment Standards Act, any employment or collective agreements, or the existing accommodation duty under the Human Rights Code, meaning employees will have the option of filing a claim with the Board or a complaint with the Human Rights Tribunal (or both) in connection with termination and accommodation issues relating to the same work-related illness or injury.

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Limit to the Duty to Maintain Employment

An employer must make any change to the work or the workplace that is necessary to accommodate a worker, up to the point of undue hardship. Whether or not accommodating an injured worker amounts to undue hardship is a complex issue and requires a detailed analysis of the specific circumstances, including physical requirements, evidence of financial impact on the business and operations, etc.

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These duties expire 2 years after the date of injury if the worker has not returned to work or if the worker is carrying out suitable work - this coincides with the concept of “frustration of employment.”

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Employer’s Failure to Comply & Penalties – Six Month Rule

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The amendments also include a built-in mechanism to ensure that employers comply with the duty to return injured workers to employment. If an employer terminates a worker within six months of their return to work, the employer will be deemed to have failed to comply with its legal duty to return the injured worker to work unless the employer can prove that the termination was unrelated to the worker’s injury.

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If the employer is found to have breached the duty to re-employ, the Board may compensate the worker by paying them an amount equivalent to the compensation that the worker was entitled to pursuant to the temporary total or partial disability provisions of the WCA. In addition, the Board can impose an administrative penalty on the employer in an amount not exceeding the Board’s maximum wage rate for the applicable year - for 2023 maximum wage rate is $112,800!

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There will be the usual right to seek a review to the Review Division or appeal to WCAT to challenge these fines but again that is more time and cost to employers and no guarantee they will win the appeal.

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Other Changes Implemented with Bill 41

1. Establishing an entirely independent Fair Practices Commission to hear complaints from workers, which would be funded by the Accident Fund;
2. Giving employers and workers the right to request an Independent Health Professional to provide independent advice in a Workers’ Compensation Appeal Tribunal (WCAT) appeal;
3. Requiring interest to be paid on compensation benefits that are determined by the Review Division of WorkSafeBC or WCAT to be owing to a person for 180 or more days;
4. Adding explicit provisions against employers dissuading workers from filing claims, with enforcement through penalties under the WCA (claim suppression);
5. Indexing workers’ compensation benefits to the full rate of annual percentage changes in the Canadian Consumer Price Index for cost of living increase (used to be CPI less one percent); and
6. Increasing the maximum compensation for non-traumatic hearing loss, which is currently capped at 15% of a total disability when there is no loss of earnings.

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Many of these amendments will result in increased claims and benefits costs, which means higher premiums for employers who fund 100% of the workers compensation system. This gives employers a further reason to ensure they understand their obligations under the WCA, and carefully evaluate employees who are injured at work as well as any WorkSafeBC claims started by their workers.

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Please see the "Commencement" table at the end of the Bill for information as to when the various parts of the legislation will take effect – details below:

Employer Takeaways

1. Given additional duties and obligations towards injured workers, employers should evaluate whether they wish to protest new WorkSafeBC claims. Once claim accepted, everything triggered.
2. Avoid terminating workers returning from WorkSafeBC claims within the first 6 months. If you must terminate returning injured workers, make sure you document reasons very well.
3. Communication is key – ensure early communication with worker and Board in event of a claim.
4. Keep an eye out on Regulations to know when some of the amendments come into force.
5. Take these obligations seriously – penalties can have a big impact.
6. Get to know and follow the WCA provisions.
7. Have good record keeping for: date of employment, injury date, termination date, length of time off work.
8. Review human rights law around undue hardship concept.

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Our experienced Employment & Disability Group is ready to assist you. Get in touch today.

When it comes to gifting property to a relative, the government does not treat it as a gift but as a sale at fair market value. This can result in capital gains taxes if you are gifting property that is not covered by your principal residence exemption and the value has increased since you acquired it. However, if you have an appraisal at a lower value, this may reduce the amount of tax.

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Your taxes could also be reduced by selling the property to a child in exchange for a promissory note (a legal IOU). This may allow you to space your taxes over up to five years and possibly at a lower tax bracket.

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We can work with you and your accountants to come up with a plan than works for your family. Get in touch with Dan today.

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