Firm

When someone says to me, “Do you do wills? I think I need one.

When someone says to me, “Do you do wills? I think I need one. My answer immediately is always a resounding yes! Yes, you do need one, and we can do that.”

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Even if your estate is simple, the will does something far more important than only dictate who gets what. It authorizes a person to get everything, or anything for that matter, accomplished.

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Without a will, nobody has authority to speak for the estate. This can be problem for landlords, companies, banks, the provincial government, the federal government, property taxes, ICBC and more.

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Not to mention, good estate planning includes more than just drafting a will. It includes a complete analysis of what you own, how you own it and what you hope to achieve with it. We can organize your assets to try reduce or eliminate fees and taxes that can be triggered when a person dies. So, yes, we do wills and, yes, you need one.

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What's in a Name?

A corporate or business name often is one of the most important and valuable assets of a b

Business Name Registration

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A corporate or business name often is one of the most important and valuable assets of a business. A business’s brand is almost always associated with its business name, representing the quality of the business’s goods and/or services, and thus accruing goodwill and a positive reputation in the market amongst consumers.

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In B.C., a business owner may register a business name (or a trade name) for their business by submitting a name request application to B.C. Registry Services. B.C. Registry Services will then check the availability of the proposed business name and determine whether it is valid for registration. This process typically ensures that an identical business name does not already exist, but does not consider business names that might be confusingly similar therewith. The business name registration permits the use of the registered name for identification purposes.

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Using Trademark Registration to Protect your Business Name

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While you as a business owner may have your business name approved and used in the course of your business, the registration of your business name does not guarantee that you have legal rights to use the name. For example, if your business name is confusingly similar to an existing business name or trademark with earlier rights, there may be others who may seek to stop you from using your business name under allegations of passing off or trademark infringement.

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Further, the business name registration does not permit you to stop anyone else from using the name (without registration), or something similar. Overall, business name registrations do not entail the same level of protection as holding a trademark registration, particularly when it comes to preventing others from using confusingly similar names for their goods and/or services. A business name registration is certainly not equivalent to a trademark registration in Canada. Without a trademark registration, you would be forced to rely on common law rights to prevent someone from using the same name or something confusingly similar, which can be tough to do.

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If your business strategy entails the use of your business name as a trademark, specifically to identify your goods and/or services, it is almost always best to take precautions and apply for a trademark registration of the name. Business names are not always used as trademarks. For example, your business name may be “JACKS LTD.” but your products may be marketed under a different trademark, such as “JACKO’S RODS”. The former would be your registered business name, whilst the latter may be eligible for trademark registration. A business name is typically only eligible for trademark registration if you are using or have a bona fide intention to use the business name as a trademark, to identify your goods and/or services. You do not want your exclusive right to use your business name as a trademark to be compromised because you did not register.

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Generally, trademarks serve a different purpose than business names. Where registration of business names are used to identify a business, they do not grant proprietary rights to the names, while the registration of a name as a trademark grants you said rights. In Canada, a trademark registration gives the owner the exclusive right to use the trademark (which may be a business name) in association with the goods and/or services. For a business, this would mean having the exclusive right to use the registered trademark in association with the goods and/or services of the business and allowing the trademark owner to prevent others from using the same or a confusingly similar trademark in Canada. This protection is nationwide and exclusive in association with the goods and/or services in the registration. On the other hand, if another entity applies and registers a trademark using your business name, you may be forced to change your business name to avoid infringing their rights.

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In addition to protecting your business name, also consider protecting your website or domain name, logo, business slogan and various names of products and/or services, particularly where such marks are used to distinguish your goods and/or services from those of others, for the same reason.

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Summary

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In view of the potential value of a trademark, registering your business name ought to be strongly considered. Indeed, for start-ups, a review of the Trademarks Register may be worthwhile to ensure no confusingly similar trademarks are registered before securing a business name. For more established corporations, trademark registration should be considered earlier rather than later.

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Who is Covered by Workers’ Compensation

Who is Covered by Workers’ Compensation Act in British Columbia?

WorkSafeBC

For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:

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The BC Workers' Compensation Act (WCA) applies to approximately 231,000 employers and over 2.33 million workers in the province of British Columbia. Where a person or entity is determined to have status as an employer under the WCA, that employer is liable to pay assessments in respect of any workers it employs and must meet all other statutory obligations of an employer such as reporting injuries to the Board and providing estimates of payrolls.

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Employers Under the WCA

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The definition of “employer” in section 1 of the WCA includes “every person having in their service under a contract of hiring or apprenticeship, whether the contract is written or oral, express or implied, a person engaged in work in or about an industry.”

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It is important to note that in determining whether an entity is an employer under the WCA, the Board is not bound by the common law principles relating to “contract of hiring or apprenticeship”. The Board has the exclusive power to determine whether a particular relationship is one of employment for workers compensation purposes. The following are some general principles the Board applies:

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• An employer may be a sole proprietor, a partnership, a corporation or some other type of legal entity.

• A corporation is considered an employer of:

- the workers employed by the corporation;

- family members or principals or shareholders for whom earnings are reported for income tax purposes; and

- directors, officers, shareholders and principals of the corporation who are active in the operation of the business.

• Societies, co-operatives, Indian Bands, and trade unions are employers if they have workers.

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Employers as Workers

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Employers may also be considered workers and receive compensation if they are injured. For example, an officer or principal of a corporation, society, cooperative, trade union or other similar entity who is active in the operation of the entity is considered a worker of the entity. However, self-employed persons or partners who have not voluntarily registered under the WCA are not considered workers unless they have incorporated a limited company.

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Workers

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Generally, workers include individuals not employing other individuals and who fall into the following categories:

• Individuals paid on an hourly, salaried or commission basis.

• Individuals paid on commission or piecework where the work is performed in the employer’s shop, plant or premises.

• Individuals paid commission, piecework or profit sharing where they are using equipment supplied by the employer.

• Individuals operating under circumstances where the “lease” or “rental” of equipment or “purchase” of material from their employer is merely a device to arrive at a wage or commission amount.

• Labour contractors who elect not to be registered as independent operators.

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Volunteers are not generally considered workers although volunteer firefighters are specifically covered by the definition of “worker” in section 1 of the WCA. Members of the public conscripted to fight forest fires are also considered workers.

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Federal government workers who work in the province are not covered by the WCA but are covered by the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA), which is administered by the Board in British Columbia. Under the GECA, federal employees who suffer workplace injuries are entitled to compensation “at the same rate and under the same conditions” as provided under the provincial law where the employee is usually employed.

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The Board is also empowered to direct that the provisions of the WCA apply to an employer “as though the employer was a worker” and to an independent operator who is neither an employer nor a worker “as though the independent operator was a worker”. The Board has therefore created a personal optional protection scheme, permitting an employer who is not an active principal of a corporation and an unincorporated independent operator without workers to purchase compensation coverage. To learn more, please review our article on: Navigating WorkSafeBC: Independent Contractors, Employees, and Your Coverage.

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Independent Operator

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This term is not defined in the WCA. Item AP1-1-1 of the Assessment Manual sets out that the criteria for determining whether a person is an independent operator, and therefore not a worker under the WCA, are those used to determine whether a contract creates an employment relationship or a relationship between independent firms. Where the contract does not create what the Board considers to be an employment relationship, the person will be considered an “independent firm.”

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Exemptions and Exclusions from Coverage

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The Board may exempt employers or workers from application of the WCA by order. The current exemptions include:

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• Certain types of individuals employed by an owner or occupier around a private residence.

• Both spouses involved in an unincorporated business in certain circumstances.

• Certain employers with no place of business in the province who temporarily carry on business in British Columbia but do not employ British Columbia residents.

• Professional sports competitors or athletes.

• Certain types of personal financial holding companies.

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The WCA may not apply to some workers and employers. For example, the WCA will not apply to a worker who does not have a sufficient connection to the province so that his presence in the province is merely transitory.

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Extra Provincial Coverage

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In some circumstances, an employer’s worker who is injured while working elsewhere than in British Columbia may be eligible for compensation. If all of the following criteria are met the Board must pay compensation:

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• A place of business of the employer is situate in British Columbia.

• The residence and usual place of employment of the worker are in British Columbia.

• The employment is such that the worker is required to work both in and out of British Columbia.

• The employment of the worker out of British Columbia has immediately followed the worker's employment by the same employer within British Columbia and has lasted less than six months.

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Where a British Columbia employer employs British Columbia workers to work in another province or territory, those workers may also be workers under the compensation laws of the other jurisdiction. In order to avoid employers having to pay double assessments for the same work, to help workers or dependants where more than one workers’ compensation authority is involved in a claim and to provide a system to solve disputes between workers’ compensation authorities, all Canadian workers’ compensation authorities have entered into an Interjurisdictional Agreement on Workers’ Compensation. The agreement sets out rules for selection of forum by injured workers, clarifies what assessments the employers pay and provides a system of reimbursement of claims costs between workers’ compensation authorities.

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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 our experienced Employment & Disability Group.

Overview of BC Workers’ Compensation

Overview of Workers’ Compensation in British Columbia

WorkSafeBC; Occupational Health & Safety

For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:

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Introduction

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In British Columbia, compensation for workplace injuries and occupational diseases is provided through a public insurance plan established by the Workers Compensation Act, R.S.B.C. 2019, c. 1 (WCA). The WCA creates a collective liability scheme whereby employers fund the system through payment of assessments based on an employer's payroll, the risk associated with their industry and the particular employer's claims experience rating. In exchange for funding the system, employers gain immunity from lawsuits for work-related personal injuries, mental disorders, deaths, or disablement from occupational diseases.

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Workers are entitled to benefits for workplace injuries and occupational diseases regardless of fault and without the necessity of court proceedings. In exchange for compensation that depends neither on fault nor the employer’s ability to pay, workers are barred from bringing legal actions against employers and other workers in respect of work-related injury or disease.

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The scheme is administered by an independent public agency established under the WCA and called the Workers’ Compensation Board (the “Board”). In British Columbia, the WCA also establishes a comprehensive health and safety regulatory regime. The Board has branded itself “WorkSafeBC” in keeping with its statutory health and safety mandate.

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In British Columbia, the Board has three primary mandates:

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• Regulation of occupational health and safety in the workplace (Part 2, WCA).

• Adjudication and payment of compensation for workplace injuries and occupational diseases (Part 4, WCA).

• Assessment and collection of sufficient funds from employers to support the system (Part 5, WCA).

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Can a worker be compensated for pain and suffering if they are injured at work?

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Workers' compensation benefits are prescribed by the WCA and provide less than full economic compensation. Unlike tort awards, there is no provision in the WCA to compensate for pain and suffering or other types of non-pecuniary losses. However, because workers' compensation benefits are paid without regard to fault, a worker’s benefits are not reduced by reason of any contributory negligence on the part of the worker as they would be under the tort system.

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Whereas the goal behind a tort award is to place the individual in the position he would have been in but for the tortfeasor’s negligence (i.e., to make the individual whole), the goal behind workers' compensation benefits is to compensate all workers fairly, regardless of fault, and to provide rehabilitation for a timely return to work.

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WorkSafeBC (the Board Level)

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First level decisions are made by various Board officers. For example, a case manager will make decisions respecting a worker’s wage loss, health care or rehabilitation benefits. An assessment officer will make decisions regarding an employer’s assessments.

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The Board (including the Board’s internal Review Division, which operates as a first level of appeal) has exclusive jurisdiction to inquire into, hear, and determine all matters and questions of fact and law arising in a workers’ compensation claim and the action or decision of the Board is final.

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The Review Division

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The Review Division is the internal review body of the Board. Its review officers may review and either confirm, cancel or vary most decisions respecting compensation, rehabilitation or assessments.

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Workers' Compensation Appeal Tribunal

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Most decisions made by the Review Division of the Board may be further appealed to an external and independent tribunal called the Workers’ Compensation Appeal Tribunal (WCAT). WCAT is the final decision maker in the workers' compensation system and its decisions are protected by a strongly worded privative clause. Any further recourse must be through judicial review in the courts (sections 293, 308 and 309, WCA).

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Note that some decisions cannot be appealed to WCAT. For example, decisions respecting rehabilitation issues cannot be appealed to WCAT and the Review Division decision is the final decision in the system and is subject to direct judicial review (section 288(2)(b), WCA).

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In British Columbia, the WCAT also has the exclusive jurisdiction to determine the status under the WCA of parties to a personal injury lawsuit and to certify that determination to the court. This is important since a worker cannot sue an employer or another worker in the Province of British Columbia. The parties and the court are bound by WCAT’s determination. The court then makes an order that gives effect to WCAT’s finding as to whether the WCA provides a bar to the action

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Upcoming Privacy Law Changes – Bill C-27

Upcoming Privacy Law Changes – Bill C-27

Labour Relations & Union Advice

Have you heard about the upcoming changes to Canada's privacy laws? Bill C-27 is a piece of legislation which has been proposed, and is in the process of being considered by Parliament. You can read the Legislative Summary here.

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If this legislation passes, it will make significant changes to Canada's privacy landscape, and add and change organizations' obligations when it comes to handling personal information (of employees, customers and clients, as well as other parties).

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The legislation will also introduce a new privacy law tribunal, as well as measures related to artificial intelligence. The new laws will include new restrictions around collecting, using, and disclosing personal information, and impose transparency requirements in handling employees' data.

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Importantly, the new privacy legislation (the "Consumer Privacy Protection Act") will explicitly require that organizations implement and maintain a privacy management program that “includes the policies, practices and procedures the organization has put in place to fulfill its obligations under this Act”.

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Non-compliance can result in significant fines, and failure to protect your employees' privacy can damage your company's reputation, erode trust, and potentially carry civil liability.

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We can help you stay up-to-date with the latest privacy requirements and develop appropriate privacy and data policies. Contact us today to learn more about how we can assist you in navigating these changes.

Received a Notice of Reassessment?

So you’ve received a Notice of Reassessment from the CRA, what to do next?

Personal

When an individual or corporation has a received a notice of reassessment, this means that the CRA has gone back and reviewed your income tax returns, and have identified a problem, which may result in you paying additional taxes and penalties.

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The standard CRA reassessment period is three years from the date on your original Notice of Assessment. So, if you received your original Notice of Assessment on June 2017, the CRA has until June 2020 to see if there has been any errors in the filing of those returns. There are provisions of the Income Tax Act that allow the CRA to go back and reassess older years. This typically occurs when the CRA finds that an individual or corporation was negligent or untruthful in filing their returns.

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If you have received a Notice of Reassessment (NORA) there are important deadlines that you must be aware of. A taxpayer has 90 days to file a Notice of Objection with the CRA. If a taxpayer misses this deadline the taxpayer can make an application to apply for an extension of time to file the objection under the Income Tax Act. When applying for an extension, the taxpayer must send the extension application setting out the pertinent facts as to why the original 90-day deadline was missed, alongside a copy of the Notice of Objection. Keep in mind that an extension is not always granted and must be made within 1 year after the expiration of the 90-day deadline. If the 15 month time period is missed completely, there is no opportunity to refute the Notice of Reassessment and the taxes owing must be paid.

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Once a Notice of Objection is filed with the CRA, it can take some time for an Appeal’s Officer (AO) to be assigned to your case. However, once an AO is assigned to your file, they will request for additional information and documentation to support your filing position. The AO will then review all the information, have discussions with the taxpayer or their legal representative and come to a conclusion. If an appeal is not successful at the objection stage, a notice of confirmation is sent to the Taxpayer. The Taxpayer has 90 days from the notice of confirmation to file an Appeal at the Tax Court. Once an Appeal is filed with the Tax Court, a taxpayers case will then be reviewed by a Justice Lawyer and ultimately a Judge if a conclusion cannot be reached.

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If you have received a Notice of Reassessment which you believe is incorrect, get in touch with our office today.
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I've been denied LTD benefits..

I've been denied LTD benefits and my employer is trying to force me back to work, what sho

Personal

Being denied long-term disability (LTD) benefits by your insurer can be a stressful experience. However, it can be even more challenging when employers use this decision to argue that you are capable of returning to work, despite you and/or your medical professionals' opinion. It's important to note that employees cannot be forced to work before they are medically able to do so. The decision of whether someone can return to work after an injury or illness is complex and involves considering both objective medical evidence (e.g., MRI results) and subjective evidence (e.g., pain or mental health issues).

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The question of whether someone is "totally disabled" under their LTD insurance policy also varies depending on their job duties and the wording of their policy. Even if someone is denied LTD benefits because they are not "totally disabled," they may still be suffering from a "disability" as defined by the BC Human Rights Code and be entitled to "reasonable accommodation" from their employer, which involves its own complex legal analysis.

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If you find yourself in this situation, it's crucial to speak with an experienced employment and disability lawyer to determine the best course of action. This may involve filing a human rights complaint, wrongful dismissal claim, or LTD benefits claim. Seeking advice before taking any steps is essential since certain actions (e.g., refusing to provide necessary medical information or returning to work prematurely) can significantly impact the outcome of your case.

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Union Organizing Update

Union Organizing Update: Are You a Target?

Labour Relations & Union Advice

Canada has seen a resurgence in unionization, which is being led by younger generations prioritizing greater dignity and respect, workplace safety, and living wages. Unions have adapted to modern times by utilizing digital platforms to organize and communicate with employees. The recent BC Labour Relations Board 2022 Annual Report reveals interesting statistics about activity in our province, which we review in more detail below. Unions in BC have been particularly successful in the health care, social services, and construction industries.

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After the NDP introduced numerous changes to the Labour Relations “Code” in 2019 to favour unions and then eliminated the secret ballot vote by passing Bill 10 in 2022, many of us assumed that union certifications would sky rocket as it had done in 1992. So it was with great interest that we awaited the Labour Relations Board (“LRB”) 2022 Annual Report to see if the number of certifications and applications to vary certifications had jumped. Surprisingly, the number of certifications granted in the last seven months of 2022 under Bill 10 is not as high as expected, which perhaps reflects the current economic reality of British Columbia, where non-union employers are increasing wages and benefits to attract workers - but we anticipate that will change.

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Labour Relations Board 2022 Report

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On March 10 2023 the LRB issued its 2022 Annual Report.

The reporting system is unique and in order to fully understand the data one must actually read the Report. However it discloses some interesting statistics:

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There were 150 applications for certification for unorganized employers with 135 granted covering 4222 employees, and 20 dismissed covering 472 employees
There were 20 applications for decertification with 17 granted covering 259 employees
Not surprisingly the most certifications granted were in Health Care and Social Services followed by construction
Almost 65% of applications granted were for employers with between 1—20 employees
What is particularly troubling for employes is the fact that 50% of applications by unions for remedial (i.e. automatic certification without regard to union support) under section 14(4.1) were granted. Compare that to the previous 10 years where only 8 such applications out of 90 were granted. This reflects the powerful amendments to section 14(4.1)

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What then is the scorecard for the success of Bill 10 in favour of unions? In the 1st 5 months of 2022 (pre Bill 10) there were 58 applications for certification filed, and 43 granted. In the last 7 months of 2022 under Bill 10 and absent a secret ballot vote, 114 applications were filed and 87 granted.

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Notwithstanding the number of applications and orders for certifications, the statistics are for me surprisingly low under Bill 10. My sense is that it reflects the economic reality of BC where the demand for labour is at the highest it has been for a long time. This worker shortage has caused non union employers to increase wages and benefits in order to attract employees and ensuring they pay at or near union wages. Job security is not much of an issue today, therefore I believe it is harder in this current environment for unions to organize—in many cases not much more they can offer employees especially since once unionized under a collective agreement all employees will have to start paying unions dues that in some cases can exceed $100 per month. There is also the fact that the demographics of workers and the nature of business has changed significantly from 1992. And of course the NDP has provided non union employees with significant benefits such as the 5 day paid sick leave that might otherwise have been negotiated by unions.

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But if the pundits are right we are heading into recessionary times when workers will become more concerned about job security. As a result it may well be that the steps taken by the NDP under Bills 30 and 10 will bear fruit for unions in 2023.

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Are You Prepared?

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While Chris and I have been successful in advising clients to oppose union certifications despite Bill 10, the reality is if a union signs up more than 55% of employees in an appropriate bargaining unit there is very little the employer can do to defeat the application. The issues at the certification hearing (held within 5 business days of the application) usually centre around whether the unit was appropriate and inclusions/exclusions. Once certified a union has a significant control over the business and significant leverage in achieving a collective agreement.

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We continue to recommend taking steps to limit the potential of a union certification before they come knocking. If an employer is lucky enough to find out about a union organizing campaign before an application is filed with the Labour Relations Board, there are steps it can take to communicate with the employees as it might under the old system of a secret ballot vote although there are certain risks that any such communications entail. Further understanding your organization’s structure in terms of a potential application for certification is important. With only 5 days to respond to the application employers might want to consider a form of audit of your organization.

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If you are interested in attending a webinar or seminar in 2023 on this topic of unionization or having us assist in an audit of your organization’s operations, please let Chris or Mike know via email, or sign up to our Employment & Labour Newsletter here.

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Mike Weiler & Chris Drinovz

March 25, 2023

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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.

Navigating Workplace Investigations

Navigating Workplace Investigations