Written by Michael J Weiler

Is This 1992 "Deja Vu All Over Again?

I have been involved with the BC Chamber of Commerce for over 30 years providing advice and input into matters related to labour, employment, workers compensation, human rights and related matters. Every year the Chamber hosts a luncheon with the Premier and the members of Cabinet. Except for the early years of the Liberals assent to power in 2002, for 16 years, the luncheon, addresses and Q & A have not been terribly earth-shattering or exciting in respect of my area of practice. On Friday, December 8, 2017, the Chamber hosted the new NDP Premier and his cabinet ministers. I was fortunate to sit at Minister of Labour Harry Bains’ table as I anticipate the changes to labour and employment laws will be significant (note the Attorney General and not the Minister of Labour is responsible for the Human Rights Code).The Premier sent a letter to Minister Bains on July 18, 2017, outlining the 5 immediate priorities of the NDP government for the Minister of Labour:

1. Establish a Fair Wage Commission to support the work of implementing the $15-per-hour minimum wage by 2021 and to bring forward recommendations to close the gap between the minimum wage and livable wages. (The commission will make its first report within 90 days of its first meeting.)
2. Create a Temporary Foreign Worker registry to help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.
3. Update employment standards to reflect the changing nature of workplaces and ensure they are applied evenly and enforced.
4. Review and develop options with WorkSafe B.C. to increase compliance with employment laws and standards put in place to protect the lives and safety of workers.
5. Ensure British Columbians have the same rights and protections enjoyed by other Canadians by reviewing the Labour Code (sic) to ensure workplaces support a growing, sustainable economy with fair laws for workers and businesses.

The Fair Wage Commission is well on its way and I suspect we might see legislation in the Spring session of the legislature (although I note that Minister Farnsworth has indicated the Government’s docket will be primarily focused on bringing in legislation in anticipation of the legalization of marijuana which may take up most of the government’s time).It is not clear how the Temporary Workers Registry will work or what its true goal is. I wonder if it will look at the need to employ more of the refugees who have made Canada their home before allowing such temporary workers.The BC Law Foundation will issue its long-awaited report on the Employment Standards Act in 2018 likely in two phases. That report, I suspect, will serve as the foundation of changes to the Act in the Fall session.The government has already made personnel changes at WorkSafe and we will wait to see what further changes are to be made. Expect other legislative and regulatory changes at WorkSafe.Finally, the elephant in the room may well be the 5th priority, namely, changes to the Labour Relations Code. In 1992 the NDP government introduced massive changes to the Code, the vast majority favouring unions. The key change was to eliminate the secret ballot vote by allowing a union to be certified based on membership cards. In 2002, the Liberal Government reversed that decision and reinstated the secret ballot. Now, the leader of the Green Party has stated that he would not favour the abolition of the secret ballot vote in favour of card-based certification. Other changes in 1992 included the Replacement Worker prohibition under section 68. The change of senior LRB personnel at the time affected the interpretation of the Code, most importantly, in the area of appropriate bargaining units (which reflected the government’s priority of extending union representation). The appointment of Stan Lanyon as Chair of the LRB was key to shaping the 1992 legislation. In 2017 Brent Mullin, the long-serving chair of the LRB left the Board and a new Chair will be appointed shortly.Employers must be realistic and accept that many changes will favour employees and unions. The one thing I mentioned to Minister Bains at the Chamber lunch is that I hoped that any changes would be carefully considered from a business perspective as well as from a workers’ or union perspective and that this NDP government would avoid the huge pendulum swing of 1992.The Minister’s appointment letter is found at: https://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/labour

Written by Michael J Weiler

Total Cost to Employer Nears $1 Million

Melissa Doyle worked for 9 years for the defendant Zochem Inc. She was sexually harassed by the plant maintenance manager whom the defendant considered to be irreplaceable. She was terminated and brought an action for wrongful dismissal and damages for sexual harassment under the Ontario Human Rights Code. The trial judge awarded damages for wrongful dismissal of 10 months compensation, $25,000 for damages for sexual harassment under the Code and $60,000 in moral damages for the breach of its implied contractual obligation of good faith in the manner of dismissal. It was this latter finding that was the focus of the appeal.After considering the examples of sexual harassment the Court noted (at paras. 9 and 10):At a July 14, 2011 production meeting, during which Doyle raised legitimate safety concerns, Rogers and another co-worker, who were aware that Doyle was to be terminated, felt free to ignore the safety issues she raised and demeaned and belittled her in front of the others. She left the meeting in tears. Doyle, unaware that Wrench was going to terminate her and that the termination letter was already in the making, turned to Wrench and made a complaint of sexual harassment. Wrench did a “cursory” investigation of the complaint and heard from Rogers, but did not give Doyle an opportunity to respond. Wrench knew that Doyle suffered from clinical depression for which she was being medicated.Doyle was terminated without cause on July 19, 2011. The trial judge found that Doyle’s gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated.The Court noted the evidence of the impact of the dismissal on Doyle (at para. 11):There was considerable evidence about the impact of the dismissal upon Doyle. She felt betrayed, abused, sad and upset. She was placed upon medication for anxiety as she had been shaking constantly. She had migraines, chest pains and sleep disturbances. A doctor at the Centre for Addiction and Mental Health (“CAMH”) recommended she be admitted to CAMH. Doyle declined but was placed under the care of a psychiatrist. She had significant sleep issues, including nightmares about Rogers’ harassment, and the workplace meeting of July 14. She was diagnosed as having a major depressive disorder, with anxiety.The trial judge awarded $60,000 in “moral damages” based on a number of factors. The Court of Appeal upheld this very significant award.The Court of Appeal provided a useful summary of the law in respect of moral damages (at paras. 12 and 13):Beginning with Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, at para. 95, the Supreme Court of Canada recognized that there is an obligation of good faith in the manner of dismissal of an employee and, at paras. 88 and 98, specified that damages are available where an employer engages in conduct that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.” Initially, the award, now known as moral damages, involved compensation through an addition to the period of notice. However, in Keays v. Honda Canada Inc., 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362, at para. 59, the Court essentially did away with the distinction between aggravated damages and moral damages and held that these damages should be recognized through a fixed monetary award rather than through an extension of the notice period: see S.R. Ball, Canadian Employment Law, loose-leaf (2016), vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2007), at § 22: 20.19 (1.1), p. 22-59 and § 22:20.19 (1.2), p. 22-60.The factors relevant to an award of moral damages are not limited to the examples in Honda, at para. 59 and Wallace, at paras. 98, 101. Nor, is the time frame limited to the moment of dismissal. Pre and post-termination conduct may be considered in an award for moral damages, so long as it is “a component of the manner of dismissal”: Gismondi v. Toronto (City), 2003 CanLII 52143 (ON CA), 64 O.R. (3d) 688 (C.A.), at para. 23, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 312; Ball, at § 22:20.19(1.1), p. 22-50.The question of moral damages is an exercise of determining and weighing the specific facts. In this case, the trial judge considered both relevant and irrelevant matters. In commenting on this the Court of Appeal stated (at paras. 14 and 15):The question of moral damages is a fact-specific exercise. At the outset of the appeal and during oral argument, although arguing that the trial judge considered irrelevant factors, Zochem conceded that an award of moral damages could be grounded on certain factors relied upon by the trial judge, namely, that employees had been instructed by Wrench to “dig up dirt” on the performance of Doyle; that Doyle was told her job was not in jeopardy when, in fact, Wrench had already put the “wheels in motion” with respect to her termination; that an employee advised Wrench about Doyle’s medical condition in breach of her privacy; and that Doyle’s keys were taken from her purse and her car was brought around.In my view, although the trial judge considered both factors that were relevant and irrelevant to an award of moral damages, the award was nonetheless justified.The decision recounts in detail the misconduct of Zochem in dealing with Doyle. The misconduct was extreme and therefore the case should be used cautiously as a precedent. But the award represents a high-water mark in awarding moral damages. Given the fact that such damages are likely not taxable in the hands of the plaintiff, the value of the award was double that of an ordinary damage award for pay in lieu of notice. This is, therefore, a greater incentive for employees to pursue these claims in court.The total damage award, which included $25,000 damages under the Human Rights Code and damages in lieu of notice of $55,000, was $150,000.But the damage award was only part of the bad news for Zochem. The cost awards of the trial judge and the Court of Appeal were just under $500,000.The trial judge awarded costs to the Plaintiff but retired before he could address the cost issue. A subsequent judge heard argument and awarded Doyle significant costs for the 28-day trial. The trial was characterized as follows (in paras. 7 and 30 of the trial decision):The trial took 28 days. It is obvious from Belleghem, J.’s reasons that the trial was hard and bitterly fought. He characterized Zochem’s approach to terminating Doyle, expressed through its employee, Wrench, as hardball and callous. It appears that Zochem maintained that approach during the trial. Zochem certainly maintained that approach in the costs argument before me. …For the reasons that follow, Doyle is entitled to her partial indemnity costs, throughout. I fix her partial indemnity fees at $322,829.98, HST on those fees at $41,967.90, and disbursements at $47,786.45. In addition, I award Doyle a further $12,000, all-inclusive, for the May 12, 2016 appointment to settle Belleghem, J.’s order, and for appearing before me to argue costs. I also deny Wrench her costs.The Court of Appeal took the unusual step of awarding Doyle almost full indemnity for costs in excess of $40,000.Therefore the total cost to Zochem of this one dismissal, taking into account its own legal fees, approached $1 million.Doyle v Zochem Inc., 2017 ONCA 130

Written by Michael J WeilerIt was reported that Fox News recently paid $90 million USD to settle shareholder claims for damages resulting from sexual harassment settlements. Harvey Weinstein’s empire is crumbling under the allegations of sexual harassment and assault. Charlie Rose has left his profession in disgrace. The liberal Democrat Al Franken has tendered his resignation. Christopher Plummer may win an Oscar stepping in for disgraced Kevin Spacey. Serious allegations against the controversial conservative Roy Moore caused many senior Republicans to say the women complainants are credible and that Moore should not run for the US Senate. Moore’s loss in Alabama, the reddest of red states, reflects the change in attitude in America on the issue of sexual harassment and assault. But contrast that with the actions of President Trump and the Republican National Committee in defending and supporting Roy Moore — despite apparently credible claims of sexual harassment — urging voters in Alabama to vote for him. Time magazine named Silence Breakers — women who complained about sexual harassment — “Persons of the Year”. These are indeed remarkable times.One joke circulating these days sadly says it all:All the members of the company’s Board of Directors were called into the Chairman’s office, one after another, until only Ted, the junior member, was left sitting outside.Finally, it was his turn to be summoned.Ted entered the office to find the Chairman and the other four directors seated at the far end of the boardroom table.Ted was instructed to stand at the other end of the table, which he did.The Chairman looked Ted squarely in the eye, and with a stern voice, he asked:“Have you ever had sex with my secretary, Miss Floyd?”“Oh, no, sir, positively not…!” Ted replied.“Are you absolutely sure….?” asked the chairman.“Honest, I’ve never been close enough to even touchher….!”“You’d swear to that….?”“Yes, I swear I’ve never had sex with Miss Floyd, anytime,anywhere…” insisted Ted.“Good. Then YOU fire her.”***********One of the problems in dealing with complex issues such as sexual assault and sexual harassment by way of tweets and 60-second news clips is that many allegations of sexual harassment might not, in fact, or law, be sexual harassment. Not all inappropriate conduct is sexual harassment. And of course allegations of sexual assault require proof beyond a reasonable doubt with the presumption of innocence. Issues such as consensual relationships and the nature and frequency of the misconduct need to be analyzed on a case by case basis. The problem is that the “sting of the allegation” in and of itself is so significant that the impact of the complaint itself may be devastating and the details of the complaints or defenses are often overlooked.With the public spotlight shining brightly on allegations of sexual harassment involving prominent businessmen, politicians, and sports, media and television celebrities, a report recently issued by the federal Liberal government and new legislation was timely, to say the least.The federal government engaged in a year-long consultation process with a number of stakeholders on the issue of harassment in the workplace. They also included an online survey. It issued its Report “Harassment and Sexual Violence in the Workplace Public Consultations: What We Heard” outlining the public consultation process. Under the heading “Next Steps” the government stated, “We listened carefully and are using the information that was shared with us to take meaningful action to counter these profoundly damaging behaviours.”The federal government has also introduced a bill in the House of Commons that would address concerns about harassment and sexual harassment in the workplace. Bill 65 An Act to Amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 was introduced in November 2017. It will address harassment, bullying and sexual harassment in two ways.First, the Act will make employers responsible for ensuring that employees are not subjected to “accidents and physical or psychological injuries and illnesses”. The inclusion of “psychological injuries and illnesses arising out of, linked with or occurring in the course of employment” represents a significant expansion of these protections for employees.Secondly, the Act will require employers to create new policies to prohibit inappropriate behaviour and harassment that could cause psychological harm. Federally regulated employers must investigate complaints of harassment and take steps to address those incidents. The Act will require that employers create confidential complaint processes to respond to harassment and provide affected employees who complain with support. If an employee is not satisfied with the employer’s response he/she has the right to ask the Minister to investigate and the Minister must then investigate unless she is satisfied that the complaint was properly investigated, or it is “trivial, frivolous or vexatious”.The Act applies only to federally regulated employers such as banks, broadcasters, interprovincial trucking companies, etc., but it will undoubtedly influence provincial lawmakers. All employers will benefit from reviewing the Act and the Report.Here are the links to the Report and Bill C-65:Federal Government ReportBill C-65

Written by Michael J WeilerThe Supreme Court of Canada has been very active over the years in expanding the protections of human rights legislation which it views as almost constitutionally protected rights. The landmark decision Meiorin 1999 SCR 652 dramatically expanded the obligations on employers in respect of the duty to accommodate. In another landmark ruling issued last month, the SCC has found that discrimination “regarding employment” under the Human Rights Code can be perpetrated by someone other than the complainant’s employer or superior in the workplace. In this case, the perpetrator (“S”) was employed by a separate company on a construction site. He repeatedly harassed an employee (“S-M”) of another company who worked on the same construction site by making highly derogatory remarks to S-M and others about S-M’s sexual orientation, religion and place of birth. S had no direct control over S-M, but the SCC found that S-M could pursue a Human Rights complaint against S and his employer. The case will have significant implications (and create problems) for employers especially those working on multi-employer sites.The case involved two persons working for different employers at the same worksite. S was a site foreman employed by Clemas and the victim, S-M, was a civil engineer working for another company, Omega, and he was in charge of supervising work done by Clemas. S made racist and homophobic statements about S-M. When the harassment continued Clemas first transferred S and then terminated S. S-M brought a Human Rights complaint against Clemas and S alleging discrimination on the basis of religion, place of origin and sexual orientation. S applied to have the Complaint dismissed arguing he was not in an employment relationship with Clemas or S-M and therefore the Tribunal did not have jurisdiction over S under section 13 of the Code that is limited to discrimination against a person “regarding employment”.The SCC held that the Tribunal had jurisdiction to deal with S-M’s complaint against S.The Court confirmed, (in para. 17), that the Code is “quasi-constitutional legislation…[and] attracts a generous interpretation to permit the achievement of its broad public purposes” as set out in section 3. The majority found that the phrase “regarding employment” was broad enough to capture a complaint by S-M against S, even though they were employed by separate employers. It applied what it called a contextual approach that took into account, for example, whether S was integral to S-M’s workplace; did the misconduct occur in S-M’s workplace; and whether S-M’s workplace and work environment were adversely affected. It noted (in para. 56):In my view, while the person in control of the complainant’s employment may be primarily responsible for ensuring a discrimination-free workplace — a responsibility that is recognized in s. 44(2) of the Code — it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions. This means that, in addition to bringing a claim against their employer, the complainant may also bring a claim against the individual perpetrator. The existence of this additional claim is especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it.The SCC concluded (in para. 69):Applying this contextual approach to the present case, I find that the alleged conduct by Mr. Schrenk would come within the ambit of s. 13(1)(b). As the foreman of the worksite, Mr. Schrenk was an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s work environment. By denigrating Mr. Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation, his discriminatory behaviour had a detrimental impact on the workplace because it forced Mr. Sheikhzadeh-Mashgoul to contend with repeated affronts to his dignity. This conduct amounted to discrimination regarding employment: it was perpetrated against an employee by someone integral to his employment context. Mr. Sheikhzadeh-Mashgoul’s complaint was consequently within the jurisdiction of the Tribunal pursuant to s. 13(1)(b) of the Code.DISSENTA strong dissent by three justices was authored by the Chief Justice. The dissent (see para. 120) would have found that s. 13 is limited to making employers and their equivalents respondents in workplace discrimination claims. It found that a more limited interpretation of s. 13 on the responsibilities and equivalents is consistent with the jurisprudence — an important element in creating certainty for employers and employees and the Tribunal (in para. 130):First, the broad interpretation proposed by my colleagues would narrow this Court’s decision in McCormick, which confirmed that the nature of the relationship between complainant and respondent is dispositive of whether s. 13(1)(b) applies. If all that is required to link a complainant to a respondent under s. 13(1)(b) is a common work environment or a “sufficient nexus with the employment context” (Justice Rowe’s reasons, at para. 67), it would be unnecessary to consider the relationship between parties, as McCormick instructs. Second, it is difficult to see how someone in a co-worker position like Mr. Schrenk could ever claim a bona fide occupational requirement as a justification for his conduct, as explained in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, which provides the governing framework for assessing workplace discrimination claims. On the interpretation I propose, these difficulties do not arise.On the basis of the foregoing, the dissenting justices concluded (at para. 131):For these reasons, I conclude that s. 13(1)(b) is limited to claims arising out of employment or equivalent relationships. I would dismiss the appeal.British Columbia Human Rights Tribunal v Schrenk 2017 SCC 62COMMENTThis decision will undoubtedly create many unanticipated problems for employers. Expanding the scope of the Code beyond employers and supervisors to those in non-direct relationships will have unanticipated consequences. Here, the employer, Clemas, was named as a respondent despite the fact that it took immediate steps to investigate and act on S-M’s Complaint—first transferring S and then terminating S. But what if S were innocent and the Complaint was spurious—what remedies would S have had against S-M? Most harassment policies protect both the bona fide Complainant and the innocent Respondent employee but, under this analysis, the latter may be left without any recourse and a large legal bill defending himself before the Tribunal.It is likely that the Tribunal will now see an influx of cases involving not only employers and supervisors but non-employer entities and contractors.Finally, the SCC has recently found that an arbitrator’s decision on harassment may be binding on a non-employer on a common worksite. Given that the SCC has found that an arbitrator has jurisdiction to apply the Human Rights Code under the collective agreement it may be that employers on a worksite will now have to participate in a grievance filed by an employee of another employer.The only certainty of this decision is that employment and human rights lawyers will be busier in 2018.

Written by Michael J WeilerYes, you read that right! In two recent cases, Ruston v. Keddco Mfg. (2011) Ltd.[1], the Ontario Superior Court of Justice has made this award in favour of a 54-year-old employee who was dismissed as President after 11 years’ service. The Court found the employer did not have just cause for termination. The Court’s award was based upon a notice period of 19 months.The Plaintiff (curiously referred to only as “J.P. Ruston”) was at the highest level of management with the Defendant, a manufacturer and distributor of oil and petrochemical products. Although there were issues regarding his performance, no formal complaints were made, and the employee continued to receive substantial bonuses.The Defendant did not handle the termination very well, first, having the Plaintiff take time off and then cutting off his email. At a meeting with a representative of the Defendant, the Plaintiff was advised his employment was terminated for cause because he had committed fraud. No details of the Defendant’s reasons were provided until the Defendant filed its Statement of Defence and Counterclaim for damages for civil fraud. The Court described the Defendant’s position at trial as follows (at para. 26):The defendant’s narrative is one where the plaintiff’s employment was terminated for just cause primarily as a result of a series of inappropriate actions willfully engaged in by the plaintiff for the intended and sole purpose of the plaintiff’s own financial gain and benefit. The plaintiff inappropriately manipulated the defendant’s financial statements and engaged in several accounting and financial improprieties over a significant and continuous period of time so as to create the illusion of the defendant earning far higher profits than it actually had. The conduct resulted in the defendant providing the plaintiff and other members of the defendant’s staff with bonuses it would not have granted had it known the true state of the defendant’s affairs. In addition to having cause to dismiss the plaintiff, therefore, the defendant has incurred economic losses causally related to the plaintiff’s conduct.In a very detailed decision, the Court determined that the Defendant did not have just cause and the $1.7 million counterclaim was dismissed. That finding sets the stage for an assessment of damages.NOTICEThe Court considered the normal indicia for determining notice, namely, age, length of service, position and available alternate employment. It also noted the Plaintiff could not move as he had to take care of his elderly father. The Plaintiff’s highest level of education was Grade 12 and there were no comparable jobs in the area. The Plaintiff was still out of work 3 years after termination except for some temporary work. The Court’s reasons imply that the biggest factor may well have been the fact that the Defendant alleged and failed to prove serious allegations of cause at trial.The Court relied on the decision of the Ontario Court of Appeal in Singer v Nordstrong Equipment[2] where that court upheld a finding that a 51-year-old President and GM with 11 years’ service was awarded 17 months’ notice, stating (at para. 108):The Court of Appeal upheld this court’s finding of a common-law notice period of 17 months: Singer, at para. 9; see Singer v. Nordstrong Equipment Limited, 2017 ONSC 5906 (CanLII). In reaching this 17-month figure, Diamond J. noted that older, longer-term employees in senior and managerial positions may be entitled to a longer period of notice considering the difficulties they may face in finding new employment. Although the employer had argued that the motion judge over-emphasized this factor in his analysis of the Bardal factors[3], the Court of Appeal disagreed.Given some differences with the facts of Singer, the Court awarded 19 months’ notice.DAMAGESThe Court awarded damages based on monthly base salary ($13,385.75); car allowance ($700); health and dental benefits which the court awarded based on 10% of base salary ($1,338.57); and RRSP/Pension contributions of based on 5% of base salary ($669.28).The bonus was a huge part of the award. The Court found that the Plaintiff received a bonus every year which constituted 41.68 percent over a 3-year average. The Defendant argued no bonuses were paid post-termination, but the Court found no credible evidence was led regarding the Defendant’s treatment of bonuses post-termination. Relying on a 2-year average, the Court awarded $153,835.97 for lost opportunity to participate in the bonus program during the 19-month notice period. The Plaintiff was also awarded $40,484.16 for bonuses owed for the 6-month period prior to termination.PUNITIVE AND AGGRAVATED DAMAGESThe Defendant was incredibly aggressive, not only at the termination meeting with the Plaintiff and in alleging cause, but also in pursuing a counterclaim against the Plaintiff – perhaps adopting the tactic that “the best defence is a good offence”. The Defendant not only failed to prove cause, but it also failed to prove its counterclaim.The Court, at para. 135, relied upon the Supreme Court of Canada’s views in the Honda decision[4] that “[p]unitive damages are intended to address wrongs on the part of the defendant that ‘are so malicious and outrageous that they are deserving of punishment on their own’ ”, whereas, by contrast, aggravated or moral damages “are compensatory damages meant to compensate the plaintiff for the manner in which he or she was dismissed”.The Court canvassed the recent case authority and, applying it to the facts of this case, awarded the Plaintiff $100,000 punitive damages (which, it should be noted, are likely non-taxable). The particular reasons of the Court are interesting. It awarded the Plaintiff $100,000 in punitive damages for the following reasons:

• The defendant’s representative, at the termination meeting, threatened a counterclaim should he sue for wrongful termination, and had done so previously to another employee;
• the defendant had caused delays and significant costs to the plaintiff by initially stating it would be producing 25 witnesses, then reduced that to five and then called only three at trial;
• the first time the defendant provided details of its allegations of cause was in its counterclaim;
• the allegations of cause were performance-based and personal attacks, which allegations were withdrawn when no evidence was brought at trial;
• a second allegation that the defendant had used company funds for personal benefit was also withdrawn when no evidence was brought at trial;
• the defendant’s expert was not able to speak to damages and, on the 7th day of trial, the defendant reduced its $1,700,000 damages claim to $1, suggesting that the defendant was using its counterclaim as a strategy to intimidate the plaintiff;
• after accusing the plaintiff of fraud, the defendant did not call any witnesses to substantiate its claim, suggesting, again, that this claim was a tactic to induce the plaintiff to drop his claim; and
• the serious allegations against the plaintiff were found to be entirely unfounded.

In respect of aggravated/moral damages, for similar reasons to those stated above (but also with an emphasis on the effect on the plaintiff of being accused of fraud and the defendant failing to bring any evidence to support that claim), the Court awarded $25,000 to the Plaintiff.LEGAL FEESIn a subsequent award,[5] the Court ordered the Defendant to pay the Plaintiff $546,684.73 on account of legal fees. The court’s reasons for awarding these costs are important as the reasons relied upon may be applicable in BC for an award of Special Costs. The Court’s reasons were stated at para 3 as follows:I make this conclusion for the following reasons taken together[6]:(1) The costs requested are proportionate to the result. $700,000 was in dispute for the plaintiff’s claim plus $1,750,000 in the counter-claim. Out of a total of $2,450,000 in dispute, the plaintiff was successful on $2,354,628.00, calculated as the amount won, plus the entire value of the counter-claim which was dismissed in its entirety.(2) The defendant pursued unfounded allegations of fraud. This was a matter of utmost importance to the plaintiff. Both his financial and professional future were at risk if the allegations were proven in court.(3) It was the defendant’s conduct that contributed to the plaintiff’s costs. The plaintiff’s costs can be said to be what a reasonable party would expect to spend upon pursuing litigation against a party who engaged in conduct like that of the defendant. The defendant refused to admit facts but failed to contest them at trial. The defendant only provided relevant financial documents after the plaintiff brought a motion. The defendant provided will say statements 14 days in advance of the trial and not 30 days in advance as ordered. The defendant relied on only 45 of the 163 documents it produced on the first day of trial. The defendant caused an adjournment of the first trial less than six weeks before the date scheduled due to the introduction of a 25 person witness list. This led to a one year delay, double preparation and the requirement to have a second pre-trial. The defendant called only two fact witnesses at trial. By this conduct, the defendant caused the plaintiff to incur far greater costs than expected, substantially increasing the costs of trial preparation and the length of trial.(4) The counter-claim rendered this action much more complex than a simple case of wrongful dismissal. Because of the fraud accusations, the plaintiff had to hire an expert witness costing approximately $30,000.(5) The defendant threatened the plaintiff with expensive litigation if he pursued his wrongful dismissal matter and then proceeded to follow through on the threat. The plaintiff would have been denied access to justice had his lawyers not agreed to defer their fees. The plaintiff survived financially by relying on his RRSP’s, selling his house below market value and breaking his car lease.(6) The use of two counsel at trial was reasonable for this case, considering the complexity of the counter-claim and the serious consequences to the plaintiff if he was unsuccessful in defending the counter-claim. Having adjudicated the trial, I observed that the work done during the trial by both counsel was different.(7) The amounts claimed by the plaintiff to prepare the trial record were reasonable as the plaintiff had to determine if it was appropriate to set the matter down for trial. This requires a detailed documentary review to ensure full disclosure and that there will be no need for further motions.(8) Having reviewed the costs outline submitted by the plaintiff, I have concluded that the time spent on various steps in the litigation is reasonable. It cannot be compared to the costs outline submitted by the defendant which is not certified. Further, my observation at trial was that plaintiff’s counsel was well prepared for trial while the defendant’s counsel was comparatively unprepared in that he arrived late or not at all in one instance, could not advise the court of the sequence and timing of his witnesses, failed to effectively use his book of documents and delivered materials at the last minute. The plaintiff’s costs outline is reflective of more time spent than the defendant in preparing for trial. This difference was demonstrated at trial to the detriment of the defendant’s counsel.(9) The plaintiff was awarded both punitive and moral damages. The costs awarded herein are done so to indemnify the plaintiff, as the successful litigant, for the costs of litigation. Any references to the defendant’s conduct are meant to explain why the plaintiff’s costs are higher than one would reasonably expect from litigating a simple claim for wrongful dismissal and in no way reflect an overlap of the punitive or moral damages awarded.SUMMARY The numbers speak for themselves. Few employers could afford such litigation, including having to pay their own counsel, which, based on the Plaintiff’s costs, could have been an additional $500,000. Further, such a win for the Plaintiff may have consequences down the road as a precedent for other employees. This employer may never again allege cause.Employers should not be shy in advancing legitimate cases of termination for cause. Such claim, if done in good faith, would rarely result in a court awarding such punitive damages or “Special Costs”. Alleging cause offers a good lever for the employer to use to settle a case by putting the employee at risk. Having said that, readers of this blog will note other cases in BC where substantial punitive damages have been awarded. Caution then is the prudent course.The full decision is found at: Ruston v. Keddco Mfg. (2011) Ltd. and the decision re legal fees is found at: Ruston v. Keddco Mfg. (2011) Ltd. (legal fees award)********The content in this blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation. [1] Ruston v. Keddco Mfg. (2011) Ltd., 2018 ONSC 2919 and Ruston v. Keddco Mfg. (2011) Ltd., 2018 ONSC 5022[2] 2018 ONCA 234 (CANLII)[3] Bardal v. Globe & Mail Ltd., 1960 CANLII 294 (ON SC)[4] Honda Canada Inc. v. Keays, 2008 SCC 3 (CANLII)[5] Ruston v. Keddco Mfg. (2011) Ltd., 2008 ONSC 5022 (CANLII)[6] We have corrected spelling errors in the original decision without affecting the substance of the judge’s reasoning.

Written by Michael J WeilerTerminating a short service employee, especially a highly paid manager, is usually the result of the employer failing to exercise due diligence in the hiring process. Often, employers don’t worry about such a termination, because they believe if they terminate a short service employee, without cause or notice, the notice period and damages for dismissal will be minimal. This is a mistaken belief that can be costly.As readers of this blog know, there are 4 key criteria the courts will use to consider what would reasonable notice be in the absence of a written enforceable agreement. Those factors, first identified in the Bardal decision, are:

1. Age
2. Length of service
3. Position with the employer
4. Availability of alternate similar employment

On occasion, Courts will also consider other factors (e.g., inducement)[1].The following three recent cases are a clear reminder of how short service employees can often end up with lengthy notice periods and large damage awards:Greenlees v Starline Windows

• Age – 43 years old
• Length of Service – 6 months
• Position – salesman
• Other factors – Inducement found to be a key factor

Decision – 6-months notice $100,000 damagesCorey v Kruger[2]

• Age – 58 years old
• Length of Service – 2 ½ years
• Position – maintenance supervisor (first level of management)
• Other factors – Age and lack of jobs key factors

Decision – 8 months notice $100,000 damagesChapple v Big Bay Landing

• Age: 61 years old
• Length of Service – 26 months
• Position – manager of a lodge—considered senior position
• Other factors – Inducement NOT a factor nor was the fact he had to move to Campbell River

Decision – 9 months notice $85,000 damages plus housing allowance (but no bonus nor consequential damages for loss on his mortgage).Other Relevant Points: After reviewing the cases raised by each party (see below), the Court noted that the cases relied upon by the Plaintiff (employee) involved employees with much higher salaries (this is not usually considered a factor) and that the cases relied upon by the Defendant (employer) focused on much shorter notice.Arguments raised at Trial:

• Defendant (employer) argued 3-5 months: The defendant paid three weeks’ salary to the plaintiff as pay in lieu of notice when he was terminated and argued that pay in lieu of notice in the amount of three to five months was reasonable in the circumstances. The defendant relied on the following judgments:Hall v Quick Silver Resources; Saalfeld v Absolute Software; Cabott v Urban Systems Ltd; and Pakozdi v B & B Heavy Civil Construction
• Plaintiff (employee) argued 12 months: In contrast, the plaintiff claimed he was entitled to payment of 12 months’ pay in lieu of notice relying on: Sollows v. Albion Fisheries (see: footnote 2); Waterman v Mining Association of BC; Taner v Great Canadian Gaming; Dobbs v The Cambie Malone’s Corp; Porter v Fleischer; Mackie v West Coast Engineering; Mitchell v Paxton Forest Products; and Munoz v Sierra Systems.

WHAT’S AN EMPLOYER TO DO?You can pay me (or another lawyer) a significant fee to fight these cases after the fact and also potentially end up paying the dismissed employee a large award of damages;ORFor those readers of my Blog old enough to remember when we used records, I am going to sound like a broken record when I say the best approach is to obtain an enforceable written contract, that not only creates certainty for both parties, but can also dramatically limit your liability when it comes to termination.So…pay me now or pay me later.********The content in this blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation.[1] Inducement occurs when an employer actively recruits an employee working for another employer with promises of higher salary, job security, etc. See: Sollows v Albion Fisheries[2] This decision is also noteworthy for its good review of various cases on notice for short term employees

Written by Michael J WeilerIn the January 2018 edition of the Weiler Blog, I reported on the directions given to Labour Minister Harry Bains with respect to introducing new laws related to employment and labour. See: Labour Minister Bains Directed to Address 5 Key Areas – Is this 1992 – “Deja Vu All Over Again?”I noted the following five directives.

1. Establish a Fair Wage Commission to support the work of implementing the $15-per-hour minimum wage by 2021 and to bring forward recommendations to close the gap between the minimum wage and livable wages. The commission will make its first report within 90 days of its first meeting.
2. Create a Temporary Foreign Worker registry to help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.
3. Update employment standards to reflect the changing nature of workplaces and ensure they are applied evenly and enforced.
4. Review and develop options with WorkSafe B.C. to increase compliance with employment laws and standards put in place to protect the lives and safety of workers.
5. Ensure British Columbians have the same rights and protections enjoyed by other Canadians by reviewing the Labour Code (sic) to ensure workplaces support a growing, sustainable economy with fair laws for workers and businesses.

Not many legislative changes have been made since then. The minimum wage was increased as expected and certain changes were made to the Employment Standards Act dealing with pregnancy and compassionate leaves. No other major changes were enacted. In my view, all of this will change dramatically in the fall and/or spring sessions of the legislature. Employers hang on to your hats.UPDATE ON THE FOREGOING MATTERS The following is a brief update of the five areas Minister Bains was directed to review:

1. Minimum Wage

As expected, the NDP implemented the changes recommended by the Fair Wage Commission that was struck to advise on how (not if) the minimum wage should be increased to $15. The first increase of $1.30 per hour, raising the minimum wage to $12.65, took effect June 1st, 2018, with the final increase to $15.20 to take effect June 1st, 2021. Further areas will be considered by the Fair Wage Commission, such as addressing the discrepancy between the minimum wage and a living wage in BC. What is interesting is that BC followed, to some extent, Ontario, but now it has been reported that the Doug Ford government will be putting future increases on hold.

2. Temporary Foreign Workers Registry

On October 11th, 2018, Minister Bains was quoted in the Vancouver Sun as saying that the government would introduce legislation in this area in the coming weeks. It appears from the Minister’s comments, that the goal of the government is to not just track temporary foreign workers, but also to create some sort of enforcement mechanism. He stated that the legislation would pave the way for the registry “to better support vulnerable foreign workers by tracking both the employers and the foreign worker recruiters.”It appears from this newspaper report that the legislation will be directed at employers and recruiters and the purpose of such legislation will not be just to track foreign workers but also to enforce laws with respect to “vulnerable foreign workers” (however that term might be defined). This, in turn, will likely create yet another layer of regulation for employers, especially small employers, who cannot recruit Canadian workers and therefore rely on temporary foreign workers. We will keep you posted.

3. Employment Standards

In June 2018. the BC Law Institute (BCLI) issued its first consultation paper and sought submissions. The Report is 407 pages and includes 78 recommendations of which 57 recommendations are consensus recommendations. It follows years of analysis by a large group of lawyers and professionals. Needless to say, it is an exhaustive report. The BCLI conducted a consultation process which closed August 31st, 2018. The BCLI has indicated it will complete its final report at least by early next year. I would assume we will see changes to the Employment Standards Act in the spring 2019 session of the legislature. Although it appears the Report is reasonably balanced, the reality is that, given the fact that the Employment Standards Act is there to protect workers’ rights, (not the rights of employers), the overall impact of the changes will likely adversely affect employers. I will provide a detailed analysis once the legislation is introduced.

4. WorkSafeBC

As expected, the Minister has appointed new members to WorkSafeBC’s Board, including a new chair. The government is also embarking on an ambitious project of renumbering and modernizing the language of the Workers Compensation Act to make it easier to read and understand. The new Act is expected to be law in March 2019. While it is not intended to make any substantive change to the laws, there might well be issues of interpretation arising from the amendments.The Board commissioned a Report by Paul Petrie to consider enriching and broadening the compensation for injured workers. The goal was to provide a worker-centred approach. The Board published the Petrie Report in April. Mr. Petrie made 41 recommendations and suggested that further reviews be conducted. The Report can be accessed here: https://www.worksafebc.com/en/resources/about-us/reports/restoring-balance-worker-centered-approach?lang=enThe Board has directed the Policy, Regulation and Research Division to undertake an analysis of the 41 recommendationsThe recommendations in the Report, especially in the area of chronic pain and mental disorders. are very troubling. The cost implications of implementing these recommendations have yet to be analyzed.The Minister has indicated he may ask for a review of the Act but, to date, has not done so.I expect that further review, followed by legislation, will be introduced in 2019 – possibly as early as the spring session – as this file is a top priority for the NDP.I am a member of an employers’ group that provides important advice and representation of employers on WorkSafeBC matters. I urge all employers to consider joining the Employers’ Forum. If you are interested, you can contact Doug Alley at the Employers’ Forum [email protected]. and/or access their website at https://www.employersforum.org/.

5. Labour Relations Code

In 1992, a 3-person panel, delivered a report to the then newly elected NDP government recommending numerous and fundamental changes to the Labour Relations Code. The government introduced many changes that favoured unions. As a result, unionization in this province flourished until the Liberals made changes in 2002.In February 2018, Minister Bains appointed a 3-person panel to review the Labour Relations Code. The Labour Review Panel finished its deliberations and produced a comprehensive Report on changes to the Code. That Report was given to Minister Bains on August 31st, 2018. For some unexplained reason, the Minister, as of the writing of this blog, has not released the Report. No explanation for this lengthy delay has been offered.I expect that the Government will introduce fundamental changes to the Code in 2019. I will, of course, provide a summary of the Report’s recommendations and then on any subsequent legislation. Employers should start now to prepare for potential changes, including the potential removal of the secret ballot vote.COMMUNITY BENEFITS AGREEMENTIn addition to the above initiatives, the NDP has taken steps to change how large construction projects undertaken by the Government will be carried out, starting with the building of the Pattullo Bridge. The government will use project labour agreements to build large publicly-funded infrastructure projects. It has been reported that this approach will raise the cost of construction by hundreds of millions of dollars. It will require workers to join the Building Trades unions if they want to work on these projects. Many contractors are being shut out. Non-union employees and non-Building Trade unions, such as CLAC, will be denied the right to work on these projects. The requirement that all employees must be members of the Building Trades unions appears to be a pure gift to the Building Trade Unions.Some might argue that if they are not in the construction business, this will not directly affect them. But such a view is short-sighted. Not only will the Building Trades capture a large portion of construction activity they had previously lost, but the coffers of the unions will also be filled and may be used for other purposes, such as organizing non-union workplaces.The Independent Contractors and Businesses Association, the BC Chamber of Commerce, a number of contractors and CLAC have started an action in the Supreme Court of British Columbia by filing a Petition challenging the “Building Trades only” provisions of the project agreement. They argue that the imposition of such a requirement is an unreasonable and ultra vires exercise of statutory discretion and, further, it is a violation of the Canadian Charter of Rights and Freedoms. The Petition makes for interesting reading and reflects a very well-thought-out argument by counsel for the Petitioners. For those who would like to review the Petition, please email me at [email protected] and I will send you a copy.SUMMARYLots will happen in the next few months that will adversely affect employers. I will continue to report on these developments. But I urge all employers to become aware of these changes as they are introduced and be ready to address them in your business.

Written by Michael J WeilerDON’T BOGART THAT JOINT MY FRIEND, PASS IT OVER TO ME (WITH APOLOGIES TO COUNTRY JOE AND THE FISH)On October 17th, 2018, the federal government will legalize some, but not all, possession and use of recreational marijuana. This fundamental change to marijuana laws will have potentially significant consequences for employers and their employees. The uncertainty created by this change will make it difficult for employers to cope with the potential negative impacts of the increased use of marijuana by employees both at work and outside of work.I note that numerous articles, blogs and newsletters by law firms, accounting firms and consultants devoted to the legalization of marijuana have recently been published. Many law firms are putting on seminars to probe the dos and don’ts for employers. The flurry of activity by lawyers and consultants in this area should be cause for concern for employers. As I often note “anytime your lawyer says, ‘now that is an interesting question’, you better get ready to take out your cheque book”! The legalization of marijuana will raise many “interesting questions” for employers as they try to navigate the new world of Cheech and Chong.It is not possible to review, in this blog, all the issues related to the partial legalization of marijuana and how that might affect your workplace, nor is it possible to provide legal advice in this blog to employers on these very complex and potentially costly issues. Each workplace must be considered on its own facts. What I have attempted to do here is highlight some of the critical issues and facts to assist employers, especially in assessing their current policies and strategies. I welcome any questions you might have on any specific topic herein.Because this is a longer article than I usually write, primarily due to the many issues and uncertainties arising from the legalization of recreational marijuana, and while I hope those most affected will read all of it, I have also included a short “executive summary” for each topic. WHAT YOU NEED TO KNOW

1. Why increased use of marijuana is, in fact, a “big deal”

Executive Summary

• Marijuana is a mind- and mood-altering drug
• Legalization will most likely lead to more users as such use becomes “normalized”
• The Supreme Court of Canada has confirmed that it causes alteration of mental function.

Some commentators suggest that the legalization will not change how employers manage or control their operations. While that may be correct in some instances, the reality is there will be significant changes in your workplace, largely because marijuana is not like alcohol or any other legal drug. All at once, many people, including younger people, will be smoking or consuming marijuana as a normal aspect of their daily lives.In a recent, insightful column in the September 29th, 2018 edition of the Globe & Mail, Margaret Wente highlighted the problems that the country will face. Under the headline “The downside of legalization: More potheads” she noted, “It’s not fashionable to say so but pot is bad for you”. She stated:“Cannabis is like any other addictive substance. Legalization normalizes it and normalization inevitably increases the user base. The more people who try it the more will become dependent….…anyone who says we can escape the downsides of legalization must be working for Big Pot—or government. Justin Trudeau assures us that a controlled and regulated market will reduce access among youth. But I think anybody who thinks marihuana use among teenagers will magically decline must be smoking something.”Many will say it’s no big deal to make marijuana legal because it does not have negative effects. That is simply nonsense. Cannabis is a mood- and mind-altering substance. The Supreme Court of Canada has acknowledged the significant impact of marijuana in R v Malmo-Levine:“All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”. That, indeed, is the purpose for which the appellants use it. Certain groups in society share a particular vulnerability to its effects. While members of these groups, whose identity cannot, in general, be distinguished from other users in advance, are relatively small as a percentage of all marihuana users, their numbers are significant in absolute terms. The trial judge estimated “chronic users” to number about 50,000. A recent Senate Special Committee report estimated users under 16 (which may overlap to some extent with the chronic user group) also at 50,000 individuals (Cannabis: Our Position for a Canadian Public Policy (2002) (the “Senate Committee Report”), vol. I, at pp. 165-66). Pregnant women and schizophrenics are also said to be at a particular risk. Advancing the protection of these vulnerable individuals, in our opinion, is a policy choice that falls within the broad legislative scope conferred on Parliament.”[para 3]It is also possible that the higher usage of marijuana could lead to more use of illegal drugs such as cocaine. All of which will have consequences for employers.

2. Legislative framework

Executive Summary

• Bills C-45 and C-46 will, as of October 17th, 2018, regulate production, distribution and sale of recreational marijuana (the laws relating to trafficking and higher amounts remain unchanged)
• The Provinces have set different rules regarding consumption and distribution. For example, the legal age in BC is 18 but, in Quebec, it is 21
• Edibles are not yet legal (although it is expected they will be within a year)
• Edibles create an additional issue in that the user may be unaware of the strength (and therefore level and duration of impairment) of the drug they’re consuming
• Despite the tests of impairment contained in Bill C-46, Canadian police forces are not ready to use the blood testing program nor are they rushing to obtain the only approved testing device
• Marijuana is different from alcohol in that both law enforcement and employers have no effective means of testing a user to ascertain that he or she is impaired
• Detection by employers is also a significant problem, and will likely worsen with legalization of edibles
• So far, we don’t know how insurers will manage accidents where it is proved that the driver consumed marijuana

Previously, medical use of marijuana has been legal based on the period and usage defined by the employee’s physician. Currently, recreational marijuana is a banned substance under the Controlled Drug and Substances Act. This will change on October 17th, 2018. At that time, Bills C-45 and C-46 will provide legal access to marijuana and will control and regulate its production, distribution and sale. As a result, adults will be allowed, in certain circumstances, to produce, possess and access regulated and quality-controlled marijuana for recreational purposes.The legalization of marijuana is limited and is strictly controlled – methods of consumption and amounts of legal possession are limited by the legislation. For example, commercial edibles are not legalized, although it is expected they will be legalized within a year. The delay in legalizing edibles reflects the uncertainty in allowing the use of marijuana. For example, impairment effects from edibles may be delayed for many hours, so a user might not realize how potent the amount of THC (the active ingredient in marijuana/cannabis), is, and be impaired at any time without realizing it. Other issues related to edibles include ensuring consistency of the THC in the product.Under the legislation, users:

• will be allowed to purchase cannabis only from regulated distributors;
• can only carry 30 grams of legal dried cannabis; and
• in BC, can grow up to 4 cannabis plants at home and make cannabis food and drink at home. (But see restrictions in BC regulations below)

The provincial regulations are still being drafted and refined as the deadline date approaches. The result will be a hodgepodge of regulations across the country that must be consistent with the federal statutes. For example, the legal age of access to marijuana will vary by province (BC is 19 years; Quebec is 21). Regulations on the growing of marijuana at home vary. Quebec will forbid growing pot at home while BC will allow adults to grow up to four plants per dwelling, but landlords can disallow cultivation and use by tenants.Bill C 46 deals with the blood drug concentration levels within 2 hours of driving and various offences committed by exceeding such levels. Despite the fact that the federal government has provided a clear definition of what will constitute impaired driving, and a legislated shortcut (which will very likely be challenged under the Charter), Canadian police forces are not yet ready to use the government-approved blood testing program, nor are they rushing to use the only approved testing device. Accordingly, in many jurisdictions, police will rely on traditional tests such as urine tests, and other sobriety tests. Once again, with the rush to legalization, the devil remains in the details, which only creates more uncertainty.Unlike alcohol, the difficult problem employers and law enforcement officials face is that there are really no effective means of testing an employee to see if she or he is truly “impaired”. Detection is also a significant problem and will be an even bigger problem once edibles are legalized.It is not clear how insurers might deal with accidents where it is proven that marijuana had been consumed by the driver(s).

3. The obligation to maintain a safe worksite

Executive Summary

• All employers in BC have a legislated duty to provide a safe workplace
• An employer is prohibited from allowing a person to remain at the workplace when that person’s ability to work is affected by alcohol, a drug or any other substance so as to endanger that person or anyone else
• An employee must report their impairment to the employer and cannot be assigned to any activity that may create undue risk
• Without a strict policy, it is difficult to see how an employer will be able to abide by the legislated duty to provide a safe workplace
• Allowing employees to use marijuana in the workplace creates potential liability for an employer for any hurt to the employee or others resulting from such use (see Jacobsen v Nike Canada below) where an employee was seriously injured driving home after consuming alcohol provided by the employer at the workplace – will those tests be applied for marijuana use? No answer yet.

Legalization is not just a concern about productivity that will be negatively impacted by the increased use of marijuana both during and before work. It raises potentially serious safety issues for employers.The obligation on employers in BC to provide a safe workplace is covered by the Occupational Health and Safety Regulations. For example, section 2.2 of the OH & S Regulations provides:2.2 General dutyDespite the absence of a specific requirement, all work must be carried out without undue risk of injury or occupational disease to any person.Similarly, Regulation 4.20 provides:4.20 Impairment by alcohol, drug or other substance(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.(3) A person must not remain at a workplace if the person’s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons.Note: In the application of sections 4.19 and 4.20, workers and employers need to consider the effects of prescription and non-prescription drugs, and fatigue, as potential sources of impairment. There is a need for disclosure of potential impairment from any source, and for adequate supervision of work to ensure reported or observed impairment is effectively managed.Further, employees have certain obligations under the regulations including Regulation 4.19 which provides:4.19 Physical or mental impairment(1) A worker with a physical or mental impairment which may affect the worker’s ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else.(2) A worker must not be assigned to activities where a reported or observed impairment may create an undue risk to the worker or anyone else.It is difficult to see how an employer can abide by these obligations absent a strict policy on marijuana.There are also potential issues of liability of employers who allow employees to use marijuana at the workplace or while at workplace functions. If marijuana is introduced and accepted in the workplace then the employer is potentially liable if, for example, the employee hurts herself or someone else driving home from a work function impaired. If the “beer after work” perk is replaced with the joint of marijuana, employers might become liable for accidents.The leading case in British Columbia on employer liability in this area is Jacobsen v Nike Canada. The employee, a 19-year-old warehouseman, worked 16 hours in his job as a warehouseman. During working hours, he and his fellow employees drank substantial amounts of beer which were provided by Nike. After work, he and his friend visited two clubs and drank more beer. He had a car accident while driving home which rendered him a quadriplegic. The court held Nike liable for breaching its duty of care to the employee.The court stated, at paras 54 and 55:Nike required the employees to bring their cars to work and knew they would be driving home. In effect, Nike made drinking and driving part of the working conditions that day. It effectively encouraged the crew to drink without limit by making freely available large amounts of beer in an atmosphere which induced thirst and drinking games. The supervisors, Mr. Agostino and Mr. Prasad, drank along with the crew and made no attempts to restrict or monitor the amount the plaintiff or any of the other crew members drank. No one told the plaintiff that some of the beer was intended for customers later in the weekend.Nike’s responsibility to the plaintiff went beyond watching for signs of impairment and taking steps to prevent him from driving if it observed any such signs. Its responsibility for his safety required that it not introduce into the workplace conditions that it was reasonably foreseeable put him at risk. It is hard to imagine a more obvious risk than introducing drinking and driving into the workplace. If an employer allows its employees to use marijuana in the workplace, whether on paid or unpaid time or at work-related functions. it raises another one of those “interesting questions” employers will face. Will the employer be liable if the employee subsequently is involved in an accident? Will employers have to reconsider their holiday party policies as they relate to the use of marijuana? Again, the reality that has to be considered is that it is likely more and more of your employees will start using marijuana as part of their normal lives.

4. Marijuana, Impairment, Detection and Workplace Policies

Executive Summary

• The ability to detect or assess impairment arising from the use of marijuana is very different from the use of alcohol. Accordingly, employers will have to consider whether their current policies will be sufficient
• The RCMP have banned it for 28 days before gun-carrying officers can report to work, whereas Vancouver is only requiring police officers to be “fit for duty” when they show up for their shift – this is similar to alcohol policies that allow use outside working hours so long as the employee shows up sober for work
• A recent grievance arbitration dealt with an employee’s use of prescribed marijuana for what was accepted to be a disability. Although the employee said he didn’t feel impaired, he failed the drug test and was denied employment. The arbitrator held that the difficulty of measuring impairment made the employee an unacceptable safety risk and held that the employer had met its duty to accommodate obligation. See Section 5 below for a further discussion of the duty to accommodate and complaints under the Human Rights Code of BC

The key difference between marijuana/cannabis use and alcohol is the fact that detection of impairment in the latter is fairly certain whereas there are no real effective tests for impairment for those who use marijuana. The inability to assess impairment for marijuana use has led to a wide variety of employer-imposed restrictions and prohibitions.The best example of this is seen in the various police departments. According to an October 8th, 2018 Globe & Mail report, the RCMP will make it almost impossible for gun-carrying officers to consume cannabis. The workplace policy will call on Mounties to refrain from consuming cannabis for 28 straight days before a shift. The position will place the national police force among the most restrictive in Canada.The RCMP’s position highlights major differences among federal organizations on the use of cannabis by their employees, as the Canadian Armed Forces have announced that most members will be allowed to consume eight hours before a shift.There are also divergent policies among police organizations, with the Calgary Police Service adopting a complete “abstinence” policy in terms of cannabis use by its officers, whereas police services in places such as Ottawa and Vancouver will only require officers to be “fit for duty” when they show up to work. The policy in those organizations will be similar to the one regarding alcohol use, which is allowed outside of working hours as long as officers are sober when they arrive at work.The problems with accurately assessing impairment for marijuana users was used in one recent case to uphold an employer’s ban on hiring anyone who tested positive for marijuana when applying for a job in a safety-sensitive position. The case provides a thorough analysis of the assessment of impairment for marijuana users.In Lower Churchill v IBEW Local 1620 )(Tizzard grievance), the arbitrator, appointed under the collective agreement, had to consider the grievance of a worker who applied for what was found to be a safety-sensitive labourer’s jobs. The worker was diagnosed with Crohn’s disease and osteoarthritis. His physician issued him a Medical Authorization for up to 1.5 grams of cannabis with THC levels of up to 22% to be ingested by vaporization. He took the marijuana every evening and said he did not feel impaired the next day. The grievor failed the pre-employment drug test and was denied both jobs. The Union grieved, arguing the employer had failed to accommodate the employee’s disability.One interesting point, in this case, is the fact that the arbitrator examined significant medical evidence, including the evidence of doctors and various publications, and found that residual cannabis impairment might last for more than 24 hours. The arbitrator found that there was no available testing that allowed an employer to measure impairment from cannabis use on a daily or other regular basis. The employer here had a duty to accommodate (“DTA”) but, since it could not accurately measure marijuana impairment, it could not adequately manage the safety risk arising from the use of marijuana. Accordingly, this inability to measure impairment created an unacceptable safety risk and thus the employer had met its DTA obligations and the grievance was dismissed. The fact the worker said he felt ok was insufficient evidence. The arbitrator concluded (at p. 65):As a result of the foregoing, the Grievance is denied. The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the job site. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.[1]

5. Do employers have a duty to accommodate all recreational marijuana users?

Executive Summary

• No
• The duty to accommodate arises under the BC Human Rights Code where an employee has a disability (resulting in a Medical Authorization and an employer assessment to see if the duty to accommodate has been met). Currently, where an employee has a medical authorization, for the use of marijuana, an employer assessment will be required to ascertain whether the duty to accommodate can be met
• Addiction to marijuana constitutes a disability
• The test for duty to accommodate requires accommodation unless to do so would constitute “undue hardship” on the part of the employer – a difficult standard decided on the individual facts
• While non-union employers have no duty to accommodate when no disability exists, unionized employers may have difficulty enforcing a total ban or a ban for a certain period of time prior to showing up for work
• The fact of disability can be challenged if the facts warrant it
• Even if the employer is unaware of a disability, it may have a duty to inquire in some circumstances
• Key to protection is a well-drafted employee manual

The answer is no. The DTA only arises under the BC Human Rights Code when the employee has a disability. In cases where the employee has a disability that results in the issuance of a Medical Authorization, then the employer must conduct an individual assessment to see if the DTA has been met. If an employee is addicted to marijuana, the DTA will arise as addictions are considered to be disabilities. Given the increased use and acceptance of marijuana and its mind- and mood-altering effects, it is likely more employees will become addicted.The DTA requires the employer to show that it has accommodated to the point of “undue hardship”. That is often a difficult onus to overcome. As readers of this blog know, what constitutes “undue hardship” is decided on the facts of each case and is, once again, one of those annoying “interesting questions”.The analysis of the employer’s DTA was required in the Tizzard grievance because the marijuana was being taken under doctor’s orders to help deal with Mr. Tizzard’s disabilities. That case had some unique factors, including the conclusion by the arbitrator that the two labourers’ positions were “safety-sensitive positions”. This conclusion made it easier for the employer to satisfy its DTA given the inability to assess actual impairment resulting from the use of marijuana.Absent a disability (or a perceived disability), employers are not bound by the Human Rights Code and therefore are not subject to the DTA. However, even in the absence of a disability, a unionized employer might have problems in enforcing a complete ban on marijuana including any ban for a certain period of time before showing up to work.The conclusion that an employee has a disability should not just be accepted by an employer -depending on the facts, this might be challenged. Further, the lack of awareness of a disability by an employer, might not relieve an employer of liability under the Human Rights Code. For example, in certain circumstances, an employer might be under a duty to inquire as to whether an employee has a disability if it is alerted to a problem.Most well-drafted policy manuals address the issue of disclosure on the part of the employee. If the employee chooses not to disclose a disability and the use of marijuana, he or she might not be able to later argue that the employer should have made inquiries as to his or her medical condition. An employee who does not make the employer aware of a disability runs a risk.In a recent Human Rights case, Burton v Tugboat Annie’s Pub, the Tribunal noted, at para 65:The [BC Human Rights] Tribunal has stated that an employer must be aware of an employee’s disability or ought reasonably to be aware, before a duty to accommodate will be triggered…

6. What about employees who work at workplaces other than that of the employer?

Executive Summary

• Where an employee works at a workplace owned by someone other than an employer, he or she may be bound by the marijuana rules of that workplace
• The fact that an employee is at another owner’s workplace might not defeat a human rights claim brought by that employee against the owner and the employer (See: “SCC once again expands the scope of human rights code to protect employees” blog post January 2018 http://weilerlaw.ca/scc-once-again-expands-scope-of-human-rights-code-to-protect-employees/)

Many employees are assigned to work at some workplace other than that of the employer. This may involve driving to and from such workplaces. If an employee is working at another workplace, he might be subject to the marijuana rules applicable to that worksite. In light of the Supreme Court of Canada’s decision in BC Human Rights Tribunal v Schrenk, the fact that the owner of the workplace may be different than the employer, might not defeat a human rights complaint by such employee against the employer and the other owner [See “SCC once again expands the scope of human rights code to protect employees” blog post, January 2018.Obviously, an employer will want to ensure that the employee who drives during working hours, whether in his car or the employer’s car, is not in any way impaired.

7. Will there be different issues for unionized employers?

Executive Summary

• Yes
• In implementing or enforcing new marijuana rules, the process and results are different for unionized and non-unionized employers
• Unionized employers will have more difficulty in implementing rules and, upon enforcement of those rules, might be confronted with a grievance, a well-funded union and an arbitrator who can order the employee to be reinstated to his or her position
• Non-unionized employers will have greater leeway in implementing rules and, upon enforcement of those rules, is less likely to be confronted by a lawyer arguing the employee’s case and, unless there is a complaint pursuant to the Human Rights Code, there is no jurisdiction to reinstate the employee to his or her position.

The answer is yes. As the Tizzard grievance shows, the process of arbitration arose under the collective agreement – that process would not be required for a non-union employer, who would only be subject to a human rights complaint. The non-union employer will have far greater leeway in imposing zero tolerance rules (subject, of course, to Human Rights concerns). However, a unionized employer will potentially face challenges by its union even in the absence of a human rights issue including many procedural hurdles. For example, workplace rules can only be imposed when the employer satisfies the tests in Lumber & Sawmill Workers Local 2537 v KVP Co. Unionized employers face a heavy onus to justify any type of drug or alcohol testing: see CEP Local 30 v Irving Pulp & Paper.Of course, the biggest problem facing unionized employers is that arbitrators have the authority to reinstate an employee or remove any discipline. Unions are well-financed and can take an employee’s case to arbitration and present it in a professional manner. A non-union employer (other than those who are federally regulated under the Canada Labour Code) will not face the prospects of reinstatement as a remedy by the court in a wrongful dismissal (although, once again, if a complaint is found to be valid under the Human Rights Code, the Tribunal does have the ability to reinstate as a remedy). Further non-union employees are less likely to hire a lawyer to argue their case.

8. Employees entering the USA

Executive Summary

• It is not looking good for employees entering the USA if they are marijuana users
• The situation lacks clarity, possibly due to the rush to pass the new legislation

USA border officers are apparently aggressively enforcing the federal laws that prohibit marijuana use and possession notwithstanding that many states, such as Washington, Colorado and now California, have legalized recreational marijuana. Your employees heading to the USA might well be questioned on marijuana use and, depending on how they answer the questions, they might be turned away at the border and potentially be permanently banned from entering the USA. It is reported that even owning shares in, or working for, a cannabis company might be sufficient grounds for USA authorities to ban entry. In an article in the Vancouver Sun October 1st, 2018, it was noted that the BC government employees who work in liquor stores and sell recreational marijuana might be barred from entering the USA. BC’s Solicitor General Mike Farnsworth was quoted as saying:“We’ve been making it clear to the federal government that this is a serious issue [which he called an] unintended consequence [of Canadian legislation].It’s a real issue and a real concern, and there’s going to need to be a lot of education done about this issue right across the country.We as a province want to make sure that British Columbians understand what it means to cross the border, and to understand the risks, particularly with the Trump administration in power.”There is no clear direction nor solution to this very real problem. However, it appears that the US Border Services are softening its policies in this regard. Unfortunately, the Trudeau government appears to be powerless in effectively addressing this situation to allow free passage to law-abiding Canadians.In an article in the Vancouver Sun on October 10th, 2018 entitled “If you buy cannabis, will Uncle Sam find out?” it was noted that with the purchase of marijuana online through the internet there will be a record of data showing such activity that might well be accessed by US border officials. Again, there does not seem to be clarity on this issue.WHAT YOU SHOULD DOMany commentators are suggesting that most employers can simply rely on their current policies for the use of legal drugs. In my view, that should not be the route to go unless the employer feels their current policies adequately cover the use of marijuana. As noted throughout this article, each workplace and policies must be assessed individually. The argument in not doing anything is, “why rock the boat—this is no different than taking a prescription pill that may have an impact on your ability to work productively or safely.” I disagree.Consider these potential issues:

• What if an employee is at a lunch or social function with an important client and the client offers marijuana. Is the employee entitled to join in?
• How does an employer regulate “on-call” employees?
• Undoubtedly there will be privacy issues raised in the enforcement of any policies. How does the employer balance privacy rights with the need to provide a safe and productive workplace?
• Will the employer expect or require that other employees will tell on fellow employees using or having possession of marijuana or related paraphilia in violation of the policies?
• Will overly restrictive policies negatively affect employee morale?

These are just some of the “interesting questions” (that means legal fees) that should be considered by all employers who want to be pro-active in addressing how the legalization of marijuana will affect their workplace.I offer two suggestions for clients to consider in this new regime:

1. Given the uncertain nature of the level of impairment at any given time and the inability of the employer to adequately detect or measure impairment, I suggest employers consider a blanket prohibition from not only the use and possession of marijuana in any form, from the time they arrive at work to the time they leave, but also a prohibition from reporting to work if they have used marijuana in the previous “X” hours before work. If they have used marijuana in the restricted time period and show up for work, that will be considered a disciplinary offence and subject to discipline up to and including termination for cause. Although proving that the employee has breached this policy will be difficult, the employees know that by showing up for work, they are warranting that they have not used marijuana in the previous “X” hours and that breaching such policy might result in termination – together, that might be a sufficient deterrent. I recommend educating your employees on all aspects of marijuana use and abuse and of your company policies in this regard.
2. Education might well be the key to avoiding problems in the workplace with the use of recreational marijuana. Hold paid training sessions – employees may well buy into any restrictions on marijuana, including a zero-tolerance policy, if that is what you choose to implement. Ensure that everyone follows the rule -employees, managers and owners. By engaging your employees in a meaningful dialogue, you will likely avoid a number of problems with the use of marijuana while respecting the employees’ rights to use recreational marijuana.

The best means to accomplish these goals is to rewrite employee manuals, employment agreements and collective agreements. However, in the case of a unionized-employer, that will mean consulting with your union to embrace both the new policies and the education programs.***********The content in this blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation.[1] For those readers wanting to explore the differences between marijuana and alcohol testing including the current medical evidence I commend the Tizard decision to you.

Written by Michael J WeilerAs noted in our last blog email, the NDP was inexplicably sitting on the Labour Relations Code Review Panel’s Report dated August 31st, 2018 (“Report”). The Report was finally released on October 25th, 2018. Links to the Report and the Minister’s Press Release are located at the end of this article.The Panel made 29 recommendations for changes to the Code on various subjects. Many of the changes, if accepted by the government, will make it much easier for unions to obtain certifications. The changes are intended, for the most part, to enhance union rights and protections.The most notable changes recommended are:

1. Keeping the secret ballot vote but shortening the time within which a vote must be held to 5 business days from receipt of the application for certification from the existing 10-day period. Note that: (a) the union representative on the Panel dissented on this recommendation, arguing that a card-based certification system should be reinstated; and (b) the shortened time frame will limit the employer’s ability to communicate effectively with its employees prior to the vote.
2. Amendments to sections 6(1) and 8 of the Code to reverse the changes made by the Liberals in 2002 which will significantly restrict employer free speech—it is “déjà vu all over again”.
3. Widening of the Labour Relations Board’s discretion to order automatic remedial certification without a vote.
4. Changes to the successorship provisions in the Code to prevent employers from avoiding collective agreements where there has been a re-tendering of contracts in the following sectors: (a) building cleaning, security, and bus transportation; and (b) the health sector including food, housekeeping, security, care aides and long-term or seniors care. In order to prevent employers from cancelling contracts prior to the change in legislation, the Panel recommends that these changes be made retroactive.
5. An extension of the freeze provisions after certification to 12 months from the current 4 months.
6. A change to the definition of picketing to remove consumer leafleting.
7. An Increase in fines for a refusal to obey a Board order from $1,000 to $5,000 for individuals, and from $50,000 to $100,000 for organizations.
8. An increase in funding to the Board.

The Panel noted many areas where changes should be made, but only after further review. Consequently, the Report is incomplete in many respects. The areas where the Panel identified a need for further review and change include: (a) multi-employer certification; and (b) sectoral bargaining. While these areas are separate and distinct, changes to either, or both, could have a significant, negative, impact on employers.The Panel also recommended that an industrial inquiry commission be appointed to review the forest industry. Kicking these and other cans down the road will create further uncertainty and concern for employers in these sectors.One key item that was left unchanged is section 68 of the Code, which significantly restricts the otherwise legitimate use of replacement workers during a strike or lockout. The Panel concluded that the provisions in the Code relating to picketing and replacement workers comprised a ”package” when introduced and, consequently, no change in either provision was needed (except for the definition of the term “picketing” described in paragraph 6 above).Feedback on the Report must be provided by November 30th, 2018.Changes will be made to the Code in the 2019 Spring session. I suspect that many of the 29 recommendations will be implemented, as they are, for the most part, unanimous recommendations. The wild card may still be whether the Minister ignores the majority’s recommendation to retain the secret ballot vote. Employers should plan now to be prepared for any changes that might be made in 2019. I would be glad to work with you to assess what steps you might want to take in advance of any legislative changes.We will keep you posted.Labour Code Panel ReportPress Release Minister of Labour