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

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

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

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

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What Legal Options Do I Have After Being Wrongfully Dismissed?

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

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

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

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

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Am I Obligated to find a Replacement Job?

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

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

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

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What Is Set-Off And How Does It Work?

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

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

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

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

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Example - Facts:

• Wage with prior employer: $20/hr

• Wage with new employer: $15/hr

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

• New job obtained after 1 month of unemployment

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

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

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

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

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

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

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

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

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

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Employment Lawyers Advising Workers

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

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

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

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

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

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How Much Severance Am I Owed

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

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

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

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

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

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

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

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What is The Notice Period?

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

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

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

• your age;

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

• job position and/or level of seniority;

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

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

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

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

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Employment Lawyers Advising Workers

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

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

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

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

1. How Much Severance Am I Owed?
2. What Should I Do After Being Fired?

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Can I Be Fired Even if I Did Nothing Wrong?

The short answer is yes.  Generally speaking, anyone can be dismissed from their employment at any time, even if the person has done nothing wrong.

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When this happens, depending on how your employer handles the end of your employment is what determines whether any additional money is owed to you.  Please see the following articles from our resources to help you navigate what might happen next:

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• What is a Wrongful Dismissal?

• What is a Without Cause Dismissal?

• How much Severance am I Owed?

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However, even if you have been told the reason you are being dismissed from your job, or ‘cause’, the reason may not necessarily meet the legal test for cause; if your employer says you have been dismissed for cause, please read our article on For cause dismissals – what employees need to know.

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What is A Wrongful Dismissal?

Any time an employee is dismissed form their job, without cause, and does not receive the appropriate amount of notice or pay in lieu of notice, a wrongful dismissal has likely occurred.

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If you are unsure whether you have been dismissed from your job with or without cause, please see our sections below about What is a without cause termination? and For cause dismissals – what employees need to know, respectively.

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If you think you have been wrongfully dismissed, please see our article on How much severance am I owed.

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What is a Without Cause Dismissal?

A without cause dismissal includes most types of terminations that are not formally noted as being ‘for cause’.  If your employer says you have been dismissed for cause, please read our below section on For cause dismissals – what employees need to know.

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Importantly, a without cause dismissal and being dismissed from your job without being given a reason are not the same thing.  Your employer is not obligated to provide you with a reason for your termination, nor is being given a reason the same as being dismissed for cause.

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If you have been dismissed from your job without cause, you may be entitled to severance, depending on what amount of severance, notice period, or pay in lieu of notice, your employer has offered you.

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For Cause Dismissals – what Employees Need to Know

If your employer ended your employment ‘for cause’ or ‘with cause’, your ability to pursue a claim for severance is likely to be impacted.  However, just because your employer provided you a reason for your dismissal, does not mean your dismissal was either properly or formally for/with cause.

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In order to a cause dismissal to have been done proper, your employer will likely have needed to satisfy many steps along the way.  Some of the steps employers should take usually include:

• providing formal warnings, usually in writing;

• providing you with an opportunity to correct or change the actions your employer takes issue with; and,

• taking steps to help you improve in the areas your employer says you are coming up short.

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When cause dismissals are not handled correctly, the employee’s ability to pursue compensation is available.

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Notwithstanding the foregoing, there are a few instances where a for cause dismissal can occur on a single incident; while courts will evaluate these incidents on a case by case basis, you can think of single incidents which properly amount to cause as those in the hand-in-the-cookie-jar types of transgressions, and including acts like theft and sexual misconduct.

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If you have been told your dismissal was for or with cause, and would like to speak with us about it, please let us know.  In order for us to properly evaluate your situation, we will ask you for:

• your employment agreement/contract;

• the termination letter you received; and,

• any and all documentation relating to written warnings, employee improvement plans, and progress reports your employer may have provided to you.

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My Job Position is being Eliminated or Significantly Changed, Now What?

If your position is either being eliminated, or changed so much that it now seems like a different job, you might be considered as being constructively dismissed.

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In the most basic sense, a constructive dismissal can usually be said as having occurred anytime an integral or fundamental component of your job is changed in a non-minor way.  You can think of integral or fundamental components of your job as including your:

• duties;

• dollars; or

• hours.

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It is important to note that not all changes to your job scope will meet the legal test for a constructive dismissal.  Minor changes, or changes that would reasonably be understood as being within the type of job scope for your position are unlikely to meet the legal test.  However, and as a guide-post only, a change of 15% or more to any of the above three factors is likely to be seen as a strong indication of a constructive dismissal.

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Regardless of whether your position is being eliminated or markedly changed, whether you are being or have been constructively dismissed is something that should be assessed on a case by case basis.  If you would like our assistance in evaluating your situation, and knowing your option for the next steps, please feel free to be in touch with us.

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Employment Lawyers Advising Workers

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Our experienced employment and labour lawyers are here to support you and walk you through every step of the way. We know workplace issues are hard on everyone, and are ready to help you navigate these difficult times. If you have any questions or need assistance please reach out to our team by submitting a Contact form.

Much to the surprise of business leaders, the NDP introduced Bill 10 Labour Relations Code Amendment Act on Thursday April 6th, 2022.  Bill 10 eliminates secret ballot votes in most union certification applications *  by reintroducing a card check system and represents a fundamental change to the Code contrary to the recommendations contained in the Report  of the NDP’s expert Panel  (“ Expert Panel”) published in 2018.   It represents a return to the NDP’s 1992 policies of promoting union organizing much to the detriment of employees who now lose the right to decide in a secret ballot vote whether a union should represent them. The NDP has once again catered to the wishes of big unions with no apparent basis for making such drastic changes especially in light of the substantial changes to the Code in 2019.

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[*note: while a vote will still be held if union support is between 45% and 55% the reality is unions will now apply only when they have over 55% to avoid a secret ballot vote].

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Bill 10 accomplishes 3 major things:

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1. It eliminates the secret ballot vote that currently is required before a union can become the exclusive bargaining agent of employees in cases where the union can show card sign up or membership of at least 55% of the employees in an appropriate unit.   As noted above, a vote will still be held if union support is between 45% and 55%.
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2. It allows construction unions to replace an incumbent union by way of a raid application every year, not as per the current legislation that only allows such disruptive applications every three years.  The current provisions were recommended by the Expert Panel  and there appears to be no reason to make this change so soon after the Code amendments of 2019 except perhaps to allow the traditional building trades  unions the annual right to try to supplant what they believe to be employer friendly unions.
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3. It allows unions to get a sneak preview of their support and the employers’ business by allowing a precertification vote before the Board determines the appropriate bargaining unit thus allowing the union to define the bargaining unit based on its support.
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These amendments follow on the heels of significant amendments introduced in 2019 by the NDP on recommendations from the Expert Panel.  At that time the NDP was saddled by its agreement with the Green Party that allowed it to govern in a minority situation.  Andrew Weaver made it crystal clear that any amendments to the Code must preserve the democratic right of employees to decide the issue of union representation through a secret ballot vote. Most importantly the Expert Panel recommended continuing the secret ballot vote:  See Vaughn Palmer’s article in the Vancouver Sun on the history here.

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Business was blindsided by these changes and expressed their discontent in a news release at the failure of the NDP to engage in consultations as promised  before such a major shift would be implemented.

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It is interesting to note that a secret ballot vote will continue to be required if employees decide to decertify.  This shows in my view that the changes are intended to respond to the wishes of big unions not the wishes of employees.
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Déjà Vu All Over Again

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In my 40 + years of practicing labour law I have been amazed but not surprised by the constant pendulum swing in labour legislation since the Code was introduced in 1972.  The most significant swing was in 1992 when the NDP took power and introduced significant changes to the Code. That included major limitations on employer free speech, and it eliminated the secret ballot vote in precisely the way that Bill 10 does.  

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When the Liberals took power in 2001, they reversed many of these changes including broadening employer free speech and reintroducing the secret ballot vote.

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The combined effect of the NDP’s changes in 2019 and Bill 10 basically swings the pendulum back to 1992 with some additional amendments in favour of unions.  For example the LRB  can  certify now without a vote if it finds an unfair labour practice has been committed.  In one case where  only two out of almost 90 employees had expressed an interest in union representation and only one employee had signed a union card, the LRB ordered remedial automatic certification where the wishes of 88 employees were ignored: Salade Etcetera 2020 BCLRB 109 appeal of 2020 BCLRB 34 dismissed.

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Yet each and every time the governing party claims that the changes simply balance the scales.

News Release - Single-step certification

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The news release in my view is simply inaccurate and misleading.  Some of the errors are most egregious.

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For example, it never mentions that it is removing employees’ right to have a secret ballot vote.  Rather it speaks of going from a two-part certification process to a one-part system in order to protect employees.  It wrongly asserts that under the current system employees have two votes.  It justifies this major shift by stating incorrectly that one vote occurs when they sign up with a union and therefore the secret ballot vote is really just a second vote.  This is false.

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Unions do not hold secret ballot votes; rather they sign up employees (or use their membership evidence)  and use those membership cards to support their application.  

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Far from being a secret ballot vote the sign-up procedure discloses who is a member and who is not.  Many employees may well feel intimidated and forced to sign a card even though that does not reflect their true and informed wishes.  Yet the News Release states that this elimination of the secret ballot vote will avoid unfair labour practices such as “requiring employees to disclose their position on potential certification”—in fact it does precisely the opposite.

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And just like in 1992, the NDP unabashedly acknowledges that these changes are intended to make it easier for unions to organize without having to test their support in a secret ballot vote.

There are other misstatements in the New Release that undoubtedly will be used by employers in responding to a union organizing drive to set the record straight.

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What Should Business Owners Do?

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These amendments will undoubtedly pass given the elimination of the Green Party’s voice.  And it is the NDP’s right to govern as they see fit—after all they are following the Golden Rule “whoever has the gold makes the rules”.  So, business has to deal with this reality.

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If you are a non-union business or partially union/non union I recommend you familiarize yourself with the certification procedures and prepare in case a union comes knocking on your door. While the secret ballot vote may have been eliminated there are other objections that can be made to a union application for certification.

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In the absence of a secret ballot vote employers should keep their ears to the ground and respond if it learns that a union is organizing the workplace.  Educating employees before a union starts an organizing drive may be critical.  Caution still prevails as employers do not want to commit unfair labour practices, but you still have the opportunity to communicate with your employees.  Educating employees and maintaining a positive work environment may be in the best interests of the employees and your business.  This includes updating and reviewing employee policies and handbooks.  As I recommend “Get rid of the garbage can under the suggestion box”.

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We will be offering webinars outlining these changes and discussing strategies to respond to union certifications in the absence of a secret ballot vote.  If you are interested in attending, please contact Chris Drinovz at [email protected].  Or give me a call.

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Mike Weiler - Contact Info Here

Friday, April 8, 2022

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

As an update to our earlier article “BC Paid Sick Leave – What Employers Should know”, the Minister of Labour, Harry Bains introduced Bill 19 – Employment Standards Amendment Act, 2022 (the “Bill”) amending the sick leave provisions in the BC Employment Standards Act (“Act”). The Bill addressed two issues that have been raised since the introduction of the five days of employer-paid sick leave:

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1. Replaces "employment year” with “calendar year” when assessing an employee’s annual paid sick leave entitlement; and
2. Ensures that employees under collective agreements are not excluded from the employer-paid sick leave.

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The Bill received the Royal Assent on March 31, 2022 and the amendments are now in effect.

We will include some information on these amendments below, and also include some important FAQs we have seen from clients to date.

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Calendar Year Instead of Employment Year

Employees are now entitled to five paid days of sick leave per calendar year. This change was brought about for ease of implementation. Establishing an employee’s annual paid sick leave entitlement based on employment year was cumbersome because it required a separate date for each employee based on the start date of their employment. With the use of the calendar year, the annual entitlement period is standardized for all employees regardless of the start of their employment.

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Unionized Workplaces

Employees who were previously excluded from the full five paid sick days due to existing language in collective agreements are now included and entitled to the paid sick days.

Other factors such as the total number of paid sick leave days per year and the eligibility remain unchanged.

The full Bill is available here.

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Frequently Asked Questions from Employers

Partial Sick Days and Sick Pay

Q&A #1:

Different people have different shift lengths, does that matter for days where employees are sick? For example, let's say one employee has a 5 hour shift, another has 8, another has 10, another has 12.  Are they all entitled to the same 5 days at 8 hours for a total of 40 hours of paid sick time?

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The length of shift actually does come into play because you have to calculate an average day’s pay over the past 30 calendar days (excluding overtime) for the individual employee to determine the amount to pay they are owed for each claimed sick day. The average day’s pay is determined by the following formula:

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• Average Day’s Pay = Amount Paid ÷ Days Worked
• Where:
• Amount Paid = the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the leave, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime
• Days Worked = is the number of days the employee worked or earned wages within that 30 calendar day period

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Q&A #2:

Similarly, for hourly staff can they take sick time in part hours per day?  Example, an employee works 4 hours of an 8 hour day and then takes 4 hours of sick time (leaves sick halfway through the day).

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On this second question, the Employment Standards Branch’s current Policy Interpretation is that there are no partial sick days. Therefore, if someone takes a sick day, they are paid the entire average day’s pay for that day, regardless of whether they take the entire day off or just a partial day. You can read more on this here if you scroll down to “Partial sick days”.

And yes, this in our view creates the absurd situation that an employee can work 7 hours and go home sick for the last hour, then claim the entire paid sick day plus 7 hours pay for the time worked. I note this is currently under review as various employer groups are lobbying the government to change this.

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

Many professional businesses such as dental clinics, law offices, accounting firms etc. engage professionals to provide services through their businesses.  Both parties usually assume the relationship is one of independent contractor. However, in many cases they are wrong, as courts often find that such professionals providing services through a clinic or firm are in fact and in law “Dependent Contractors”.  As such, they have rights and obligations like an employee. This concept was recently analyzed in the recent important BC Supreme Court decision of Siddhivarn v. Dr. John W. Nesbitt Inc., 2022 BCSC 394, where Chris Drinovz acted for the dental clinic owner, Dr. John W. Nesbitt, defendant/plaintiff by counterclaim in this case.

Dr. Chitpol Siddhivarn provided dental services in Cranbrook through the Peak Family Dental Centre (“Clinic”) owned by Dr. Nesbitt through his company Dr. John W. Nesbitt Inc.  In June 2017, Dr. Siddhivarn responded to an ad placed by the Clinic and was hired in September 2017.  Unfortunately, the agreement was not put inwriting and the parties disagreed on the specific terms of compensation, who the contracting parties were or what would happen should the relationship end.  As is the case in many “oral agreements” uncertainty of terms led to a Supreme Court lawsuit.

Dr. Siddhivarn resigned with minimal notice to the Clinic in 2018.  He sued Dr. Nesbitt personally and his company for $48,000 being the shortfall in compensation owed at the time of his resignation.  He originally started his action in Small Claims court but then moved it up to the Supreme Court.

Dr. Siddhivarn claimed the deal was he would be paid 50% of billings minus lab expenses; the Clinic claimed he was entitled to 40% of billings less lab expenses. Sometimes the best defense is a good offense.  The Clinic counter sued Dr. Siddhivarn claiming he was a “Dependent Contractor. As such, the Clinic argued that the relationship was more akin to an employer/employee relationship and therefore Dr. Siddhivarn was required to give “reasonable  working notice” of his resignation.

The court dealt with a number of issues including:

• Finding that despite the disagreement on the evidence, the case could be decided in a Summary Trial fashion based on affidavits and discovery evidence.
• Dr. Siddhivarn’s oral agreement was with the Clinic (Company) and not Dr. Nesbitt personally.  The court applied the “officious bystander” test holding one would have “known or should have known that they were contracting with the Company.”
• The agreement on compensation was 50% of billings less lab expenses and not 40%.The court awarded Dr. Siddhivarn $48,880.42 against the Clinic.

It then turned to the counterclaim we filed for the Clinic. 

First the court concluded on the evidence that Dr. Siddhivarn was not an independent contractor but rather a “dependent contractor”.  The court reasoned as follows:

Additional broad categories of factors which have been applied by this Court, including in Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940 at para. 125, in determining whether a relationship falls within a dependent contractor relationship include the following:

a)    The level of worker control;

b)    Ownership of equipment and tools;

c)     Profit and loss opportunity; and

d)    Business integration.

Lightstream at para. 125.

[49]         In this case the evidence indicates that Dr. Siddhivarn was providing dental services as an individual practitioner and nothing indicates that his work was supervised. On its own, this suggests an independent contractor arrangement.

[50]         Other factors suggest a dependent contractor relationship. Dr. Siddhivarn could not hire his own support staff but used the staff employed by the Company at the Clinic, he was expected to work a set number of days per week, did not bring his own equipment and was not responsible for paying expenses such as rent, utilities or supplies (except that lab fees which were deducted in the calculation of his compensation). In addition, his compensation can fairly be described as a commission on the dental services he performed, rather than being a share of the Company’s profits from the revenues generated by all the practitioners.

[51]Inconsideration of the factors described in Marby and in Lightstream I find that Dr.Siddhivarn’s relationship with the Company falls within the intermediate category. Therefore by operation of law, I find that it was an implied term of the oral agreement between Dr. Siddhivarn and the Company that he would provide reasonable notice before withdrawing his services at the Clinic.

Reasonable Notice

Most employees do not realize that they must give reasonable working notice of their departure, and this largely because there are so few cases that involve such claims.  In most cases it is usually the employee suing the employer for lack of notice of termination.

But what is remarkable and precedent setting in this case is that the court accepted our argument and found that Dr. Siddhivarn as a dependent contractor had to give “reasonable working notice” of his departure to the Clinic he worked at.

The argument was that notwithstanding his short service, 6 months would have been reasonable notice for him to provide to the Clinic.  We pointed to the fact that Dr. Nesbitt was 70 years old and was in poor health and that it was generally difficult to find replacement dentists.

The court held that 3 months was reasonable as that is how much time it took to place the ad and hire Dr. Siddhivarn in 2017.

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Damages for Failure to Provide Reasonable Notice of Resignation

This was a most difficult task here given the variables and the fact that the Clinic hired two dentists shortly after Dr. Siddhivarn left. We argued those dentists replaced another dentist who left, but the court found it was impossible to decide which new dentist replaced the Plaintiff.  Applying a very “rough justice calculation” we proved a loss for the Clinic in the amount of $21,000, and judgement was entered in that amount against Dr. Siddhivarn.  Although the amount of the award is relatively small the precedent in our view is enormous.

Takeaways

The head of our Group Chris Drinovz was counsel for the Clinic.  Here are three lessons we think you can take away from this case:

1. Oral agreements “are not worth the paper they are written on.”  Yet most employers and professionals often do not provide for clear written contract terms.  Not surprisingly costly litigation often results.  If you want to put us lawyers out of business, take the time to consider the actual terms of the contract whether it be with employees or dependent contractors and put it in writing.
2. Just because someone is described as a “contractor” does not mean that they are in law and in fact an independent contractor.  The fact that no deductions are made etc. does not alter the fact that in many such arrangements courts will find the relationship is really that of dependent contractor or even employee/employer.
3. Regardless of whether the relationship is that of employer/employee or business/dependent contractor, a court will in the absence of clear language to the contrary imply a term that reasonable notice must be given, and they will define what reasonable notice is in your oral contract.

To learn more about the differences between employees, independent contractors and dependent contractors, read our previous article here.

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.

Over the last couple of months (start of 2022), we have been assisting our clients with an increased number of audits and investigations done by the BC Employment Standards Branch. Some of the audits started off as a single Employment Standards complaint but then turned into an audit of the company's entire workforce for general compliance with Employment Standards Act. This comes after the article we prepared last year on Important Changes to BC Employment Standards Act, which you can read here. As part of recent amendments to the Act, the Director's powers to investigate compliance with the Act "at any time or for any reason" were increased at that time, and it seems have been put into force following the amendments.

In conducting these audits, the delegates of the Director have the power to compel any record from the employer, speak to witnesses including other employees, and even physically attend the workplace to inspect records and investigate.

Some of the main focus of the audits are in the following areas:

• Overtime pay (especially around workplaces with informal agreements around hours and banked time and salaried employees),
• Vacation pay, and
• Statutory holiday pay.

Investigations related to unpaid wages include a review of payroll records. The Employment Standards Branch will:

• Audit the records directly
• Require an employer to conduct a self-audit and review it, or
• Review an audit completed by a third party hired by the employer

For further insights on the topic of salaried employees and overtime, we highly recommend taking a look at our article prepared by Jesse Dunning explaining Overtime and the Salaried Employee under the Employment Standards Act. Overtime for salaried employees can be an area of confusion for employers and workers in BC. Many assume that because an employment contract sets out a fixed salary for the year, the employer is not required to pay the employee for overtime worked. This assumption is incorrect, and can lead to significant problems in the employment relationship, as well as during an Employment Standards investigation.

Enforcement Through Employment Standards Investigations

Once the investigation is complete, if wages are owing, the Employment Standards Branch may make a written decision called a determination, if full voluntary payment is not made. If an employer has not followed B.C. employment standards, they will be ordered to pay wages owed along with interest and penalties.

The scariest thing is that if the breach is company-wide (or department-wide), during an investigation the Employment Standards Branch can order compensation be paid for entire affected workforce even if only one person complained and nobody else has issues. The Branch can go back 1 year by default, but up to 24 months in special circumstances.

If you are contacted by the Employment Standards Branch regarding an investigation, it is important that you obtain legal advice from experienced employment lawyers right away. Our Group has been successful in assisting clients reach settlements to reduce the financial impact of these audits, and are here to help.

In addition, as always, we recommend being proactive about protecting your business. If you are an employer concerned that you have salaried employees (or dependent contractors) who have been working significant amounts of unpaid overtime, it is important that you speak with a qualified employment lawyer regarding your situation. At this time, we are offering Audit Prevention services, including a review of your existing Employment Contracts, Workplace Policies and practices, with a focus on identifying any potential breaches or weak points, and working with you on remediation and ensuring compliance with the Act, before an investigation comes your way.

If you are interested or would like to find out more, please submit a Contact form or email Chris Drinovz.

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As of February 1, 2022, Kane Shannon Weiler LLP is rebranding. As part of our rebranding strategy, our business name has changed from Kane Shannon Weiler LLP to KSW Lawyers. This name change is part of our strategy targeted to providing high-quality, comprehensive legal services to all our communities.‍‍

Why Rebrand Our Firm

Kane Shannon Weiler LLP was founded in 1973 and primarily served clients in Surrey and the surrounding areas involving in matters of business law and real estate. Since that time, 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. Over the last few years, we have become one of the largest law firms South of the Fraser River, with recognized leading lawyers in multiple specialized practice areas.

Our partnership discussed how we can continue to nurture our evolving clientele. We know we have experienced and knowledgeable lawyers and support staff that have been providing and will continue to provide quality services to our clients. But we also want to effectively communicate that to our current and future clients. What a better way to do that then with a new brand and a new mission and vision statement to support what our new logo represents.

KSW Lawyers’ Vision and Mission are based on our three founding principles:

·       Dedication to quality

·       Commitment to community

·       Passion for serving others

Our Vision

KSW Lawyers’ vision is to provide a holistic, client-focused approach to law, that serves and supports our community.
To do this, we have been developing our existing practice areas into thriving departments by leveraging processes, education, and technology at the firm.

Our Mission‍

As a full-service law firm, our mission is to provide high-quality, comprehensive legal services to our community.

To achieve this, we have been growing our firm strategically, creating new, specialized departments in various practice areas to expand our capabilities and services.

What does this mean for our current clients?

Our clients can expect nothing less than the experienced legal services you’ve come to appreciate; you may just see a more modern look, more legal services and streamlined, easy to use technologies offered in the future. Our dedication and energetic working relationships with you will continue while we work on adding more services that are beneficial to our communities.

Some changes you will easily notice in the coming months will be our new website, email addresses, social media profiles, new logo and brand signatures.

Our New Logo

The new KSW Lawyers logo features 3 primary icons. These illustrations are representative of the following values:

‍Personal Law

Figures representing  community, our personable values, and personal legal services for individuals.

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Litigation

Geometric figures forming  Lady Justice: the allegorical scale within judicial systems. Representative  of the comprehensive litigation services KSW Lawyers offers to help you  resolve your disputes.

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Business Law

A staircase,  representing our ability to help our business clients achieve growth and  progress, by overcoming obstacles with our advice and support.

Thank you

We’d like to take some time and thank our loyal clients for your many years of support. We are grateful to be able to serve so many different communities in the FraserValley and look forward to growing alongside you in the future.

Sincerely,

Partners of KSW Lawyers

Peter Unruh, Peter McCrank, Kevin Scott, Peter Hamilton, Tony Urquhart,
Chris Drinovz & Travis Brine

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Strata Corporations and Collection of Vaccination Status Information

The implementation of Vaccine Cards and proof of vaccination requirements to access certain events, services, and businesses in BC has raised questions for those living in strata properties. 

Many privacy-concerned residents are wondering whether their strata corporation has the authority to require them to provide proof of vaccination in order to use common facilities such as gyms, pools, and social rooms, and if so, how their privacy will be protected.

Without clear direction from the BC government, this can be a difficult topic for volunteer-run strata councils to navigate. 

A strata corporation may be able to impose vaccination requirements for common use facilities by passing a bylaw at a special general meeting or an annual general meeting at which the proposed bylaw receives a 3/4 majority vote. Strata corporations may also be able to implement a rule without the necessary requirements for passing a bylaw. 

Section 125 of the Strata Property Act, SBC 1998, c 43 allows strata corporations to make rules governing the “use, safety and condition of the common property and common assets”.  

If a strata corporation does decide to implement vaccination requirements, it means that the strata corporation will be collecting personal information of residents and is required to comply with BC’s privacy laws. 

Strata corporations are governed by the Personal Information Protection Act, SBC 2003, c 63 (“PIPA”). PIPA describes how corporations must handle personal information that they are collecting, using, and disclosing and allows for collection, use, and disclosure for reasonable purposes. Reasonable is defined by the context in which the information is collected and will vary in different situations. It is important that strata corporations clearly and specifically identify the reason that they are collecting personal information. 

Generally, PIPA requires that strata corporations: get consent from residents to collect information; have a reasonable purpose for collecting, using, and disclosing information; inform residents of that purpose; have adequate security in place to protect information; appoint someone to be accountable for PIPA compliance; and destroy information when it is no longer needed for its purpose. 

In the context of requiring proof of vaccination, strata corporations ought to be cautious about over-collection, disclosure and storage of information, and retention. The least amount of information collected to achieve the purpose is the best practice. For example, rather than collecting a copy of a resident’s proof of vaccination, a better option is keeping a list of resident’s names and placing a checkmark beside the names of residents who have shown their vaccination status to the strata member designated to ensure PIPA compliance. 

It will be important for strata corporations to consider who will have access to the collected vaccination information and limit the number of people to as few as possible to carry out the stated purpose. 

Storage of information is another key consideration. Strata corporations should consider where the information will be stored so it is protected from risks such as someone who is not supposed to see the information being able to see it, someone changing the information, or someone stealing or losing the information. Storing information in a locked filing cabinet that only designated people have access to is a good safeguard. 

Finally, strata corporations ought to consider how long they will need to retain the information and how they will dispose of it once it is no longer required for the purpose it was collected for. Strata corporations will have to grapple with when proof of vaccination will no longer be required. Once that day comes, the information collected must be destroyed or securely disposed of, for example, by shredding any documentation retained in the collection process. 

If you have any questions or need assistance in ensuring you are PIPA compliant, please reach out to Tiana Reid at [email protected]