Being a good employer in Canada means doing more than paying minimum wage for hours worked. In the case of misconduct in the workplace, being a good employer means understanding occupational health and safety, employment standards, and human rights legislation and when necessary, hiring someone outside to investigate misconduct.

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While hiring an external investigator can feel like exposing your company to a foe, below are some reasons to consider an external investigator a friend.

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1. The person being investigated is also the person responsible for ensuring complaints are investigated

A good Respect in the Workplace policy will be signed off by a senior leadership team member responsible for workplace culture. If the misconduct complaint is about that team member, it is important to choose someone outside your company to investigate the misconduct complaint to demonstrate that the policy is applicable to all employees, and not even senior leaders are above its application. Choosing an external investigator also ensures that alliances, friendships and power dynamics amongst the senior leadership team aren’t a factor since the external investigator will not have a vested interested in any particular outcome, like the other members of senior leadership team.  

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2. The misconduct complained about may be of interest to the public and/or shareholders

Many companies have built their brand around values focused on social purpose. When misconduct occurs in such companies, the impact on the brand will be great if the misconduct touches on the company’s core values. Having an external investigator assess the facts will demonstrate that the need for a workplace investigation can be reconciled with the company’s core values since an external investigator brings necessary objectivity.

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3. Company restructuring has occurred, is occurring or is about to occur

Change is inevitable, however the stress associated with it can have unintended consequences on your employees if not properly handled. If a complaint is received before, during or soon after restructuring, consider an external investigator.  This is especially true if your workplace is unionized, and employer-union relations have suffered because of changes. The benefit is that the external investigator does not have a vested interested in what the company was before or after the restructure so will bring objectivity to the investigation that an internal investigator may not.

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A new law coming to effect on July 1, 2024, will remove barriers to recognizing foreign credentials to relieve B.C.’s labour shortage. The International Credentials Recognition Act will require 18 professional bodies to remove barriers to 29 professions, allowing credentials of foreign educated workers to be recognized. The new regulations will also require regulatory bodies to collect data on foreign trained workers.

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The new act, which initially passed legislature in 2023, required revision before implementation; including the removal of work experience and language requirements, which parliamentary secretary for international credentials Ravi Parmar described as being “discriminatory” and a “big stop sign” to many foreign workers hoping to be employed in B.C. Parmar said these changes will create fairer, simpler rules for foreign-educated individuals looking to work in B.C.

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Among the professions impacted by the new act are paramedics, clinical social workers, engineers, architects, teachers, early childhood educators and lawyers. The soon-to-be implemented changes are designed to speed up integration of foreign-trained workers to address current and future labour shortages, it also calls on regulatory bodies to improve transparency, cut wait times and charge international applicants similar fees as domestic ones.

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These regulations come at a time when B.C. is only one of several G7 jurisdictions competing for skilled, foreign labour. Premier David Eby worries that B.C. is not receiving enough support to integrate newcomers, with Parmar stating that ‘we need the federal government to step up”. The implementation of the International Credentials Recognition Act will remove roadblocks that, up to this point, have prevented skilled professionals with foreign credentials from establishing themselves in B.C.

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In a recent decision by the Ontario Court of Appeal an Ontario trial judge was rebuked for not providing written reasons in acquitting a man accused of very serious assaults, some of which were sexual assaults. R. v. Sliwka, 2017 ONCA 426

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The trial judge acquitted the accused and said when deciding to acquit that written reasons would be forthcoming. Written reasons were never provided.

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The Crown appealed the acquittals on the basis that were no reasons for judgment and that the failure to provide reasons for the acquittals amounted to an error in law, requiring the quashing of the acquittals and the order of a new trial on all counts.

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The Ontario Court of Appeal agreed.

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The trial judge said in open court “I have now had full opportunity to carefully consider the matter and to arrive at a decision on all of the counts. My detailed written reasons will be released on Monday, March 14th, 2016.” The Court of Appeal said, “They are not reasons that in any way explain that decision or expose it to proper appellate review.”

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The Court of Appeal, relying on well-known legal principles laid down by the Supreme Court of Canada, stated:

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Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles.

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On an appeal based on the trial judge’s failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective, do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict.

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This was not the first time the trial judge had failed to provide written reasons for judgment. But the Court of Appeal said it had better be the last, concluding:

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Our order directing a new trial is a terrible result for everyone involved in this proceeding. The trial judge’s failure to give reasons, despite her repeated promises to do so, has frustrated the proper administration of justice. Nor is this the first time that this trial judge’s failure to provide reasons has required this court to order a new trial. It must be the last time.

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In a recent decision from the Supreme Court of Canada (SCC) Canada’s highest court overruled a B.C. trial Judge who had decided that the City of Nelson’s snow clearance and removal was an operational, not a policy decision, and therefore was immune from liability arising from Taryn Marchi’s negligence claims.  Taryn Joy Marchi, a nurse, had parked her car in a parking spot on Baker Street. Seeing no other way of getting to the sidewalk she tried to cross the snowbank created by the City’s earlier snow plowing. In trying to climb the snowbank, she seriously injured her leg. She sued the City alleging that the City had been negligent in not creating openings to access the sidewalk. At trial, her case was dismissed. She took her case to the BC Court of Appeal and won the right to a new trial. The City of Nelson appealed that decision to the Supreme Court of Canada.  In Nelson (City) v. Marchi 2021 SCC 41 Canada’s highest court ruled that the City’s snow removal decision was not a policy decision, which would have been a successful defense by the City, but an operational decision. As a result, the SCC held that the City of Nelson owed Ms. Marchi a duty of care. Unfortunately for Ms. Marchi, the SCC decision only clarified the law in this area but did not result in an award of damages for her injuries. The SCC agreed with the B.C. Court of Appeal and held that Mrs. Marchi should get a new trial to assess damages for her injured leg. The SCC decision has clarified the law in this area as to what decisions made by public authorities are immune from tort liability as policy decisions.

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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.

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In the case of Kay v. Randell and Randell 1997 CanLII 2894 (BC SC) Master Patterson made the following comment regarding how the clients in that case had come to select their lawyer:

In her evidence, Mrs. Randell said she trusted Mr. Kay to do the right thing and relied on what he told her. An indication of the lack of sophistication of the clients in the obtaining and use of legal services is that they hired Mr. Kay on the basis of an advertisement in the Yellow Pages,  without apparently making many or any other inquiries. (emphasis added)

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Many times people will select a lawyer based on the 2017 version of the yellow pages, the  Internet. They will google their legal problem and a list of lawyers will come up who profess to have particular skill or expertise in that area of the law. But does that lawyer really have the necessary experience and expertise? How do you know?

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In the era of internet search terms and websites many lawyers will state that they specialize in a  particular area of law. This is so even though the British Columbia Law Society Rules expressly forbid a lawyer from proclaiming him or herself a specialist in any area of the law. Here is the Rule:

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Specialization  4.3-1

Unless otherwise authorized by the Legal Profession Act, the Law Society Rules, or this  Code or by the Benchers, a lawyer must:

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(a) not use the title “specialist” or any similar designation suggesting a recognized special  status or accreditation in any other marketing activity, and

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(b) take all reasonable steps to discourage use, in relation to the lawyer by another person, of the title “specialist” or any similar designation suggesting a recognized special status or  accreditation in any marketing activity.

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Many lawyers will hold themselves out as “trial lawyers”. One would assume this means they go to court a lot, are experienced in the trial process, obtained a number of (hopefully favourable) judgments, and are comfortable being in court. But did you know a newly minted lawyer can hold him or herself out as a “trial lawyer” without ever having conducted a single trial? There is no rule against it.

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Are you choosing our lawyer without doing your own due diligence?

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Well, how do you find out if the lawyer you are about to hire is the real deal? The internet can be very helpful in this regard. Are you relying on those “Rate My Lawyer” websites where all sorts of accolades are posted from people who may or may not be qualified to give an opinion on the quality of the legal work (or worse are doing favours for a friend or family member in the law business). You will see things such as “Smith is the best lawyer I ever had!” Well perhaps they have only had one lawyer in their life, or Smith was the cheapest one they could find. How can you ever verify what is said on these types of websites? You cannot.

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Flashy websites do not a good lawyer make. Any lawyer can don his or her court robes and stand for a photo at a Courthouse; or be photographed pouring over legal briefs at “3 a.m.” Be wary of advertising claims on websites such as “over 70 years of combined experience”. What does that mean? You could be hiring of firm comprised of 70 first year lawyers or 25 lawyers of 2 years experience. You get the idea.

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If you really want to find out if the lawyer you are about to trust with your case and your future is a trial lawyer the first question should be “how many trials have you done”? The second question should be “how many trials have you done as lead counselor on your own” Ask what type of trials the lawyer has done –are you entrusting a six-figure personal injury case to a lawyer who has never done a Supreme Court trial and only appeared in Small Claims court? Has the lawyer ever done a jury trial? Does the lawyer have experience in the type of law that you are dealing with? These are important questions to ask of the professional in whom you are about to entrust your case.  

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Perhaps you should be more interested in what Judges have said about the lawyers who appear in front of them, or what the Law Society has to say about his or her discipline record. You can find out a great deal about how experienced a lawyer is by checking the reported Court decisions online. You can go to the British Columbia Provincial, Supreme or Court of Appeal websites and plug in the lawyer’s name and do a search. Any reported judgment will show up in your search if that lawyer was counsel on the case. Another great free resource is a website called CanLii.org. This website covers cases across Canada. Type in your selected lawyer’s name and see for yourself what his or her track record is and the level of experience. You may even find that he or she is a past (or present) party to a court action!

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You can also check the B.C. Law Society’s website LawSociety.bc.ca to see if your chosen lawyer has ever been suspended or otherwise disciplined by the Law Society, and for what. You can find out what year your lawyer was called to the bar. You can go to Martindale.com to see where your lawyer went to university and what other lawyers knowledgeable in their field have to say about your lawyer’s experience and standing. Every lawyer has a law degree from somewhere; wouldn’t you like to know from where? And half of those lawyers graduated in the bottom half of their class.

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Ask around, get informed, and make sure the lawyer you choose has the necessary qualifications, knowledge and experience to get the job done. An attractive headshot, internet anecdotal ratings, and a flashy webpage should not be the criteria upon you choose your legal representation.  

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Dig deep and ask the tough questions before deciding on your legal representation. After all, isn’t that what you would want your lawyer to do?  

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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.

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Bad-faith evictions, lengthy rental disputes and rent increases due to a child being added to the household will be addressed through amendments to the Residential Tenancy Acts (RTA) and the Manufactured Home Park Tenancy Act (MHPTA), the province has announced. The proposed changes are intended to “close loopholes” used by landlords and tenants alike, said Premier David Eby.

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The changes to the RTA and MHPTA address bad faith evictions and unfair rent hikes. Bad faith evictions occur when a landlord does not use the unit for the purpose given in the eviction notice for at least 6 months. For example, if a landlord evicts a tenant for personal use of the rental unit but rents it out for a higher rate instead.

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Notable changes to the RTA and MHPTA:

• A landlord must occupy rental unit for 16 months after ending a tenancy – previously 6 months
• Increases amount of notice landlord must provide to tenants for personal occupancy
• Landlords will be required to create eviction notices via web portal when they intend to use the unit for personal purposes, which will allow for post-eviction audits
  • The notice period to evict tenants for personal or caretaker use will also increase from 2 months to 3 months. If landlords provide an eviction notice but fail to use the unit for such purpose, they must pay the evicted tenant 12 months’ rent as compensation.
• Prohibits evictions for personal use in rental buildings with five or more units, and evictions with the intention of converting rental units for non-residential uses
• Tenants will have 30 days to dispute an eviction notice – up from 15 days
• Restrict rent increases when a tenant adds a child under 19 to the household – (ie. Can no longer increase rent if a tenant has a baby)

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Additionally, the province has added more staff to the Residential Tenancy Branch (RTB) to help reduce wait time, which have already been reduced by more than 50% according to Premier Eby.

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The changes are intended to protect long term renters, and seniors in particular according to Housing Minister Ravi Kahlon.

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B.C.’s minimum wage is now permanently tied to inflation thanks to a new law tabled by Labour Minister Harry Bains. The provincial minimum wage most recently rose 65 cents to $17.40 on June 1,2024.  This raise represents a 3.9% increase, consistent with the average inflation in BC in 2023. This figure was determined through consultation with the Fair Wages Commission, an independent body that advises the labour ministry through consultation with businesses, unions and workers. Deflation would not result in a decrease in the minimum wage, in this case the minimum wage would remain the same.

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Labour Minister Harry Bains asserted that this decision would enshrine into law the government’s commitment to preventing our provinces lowest paid workers from falling behind, providing certainty for both workers and employers. Indeed, this decision will positively impact the approximately 130,000 B.C. workers earning minimum wage. The new law will also see the B.C. minimum wage rising from one of the lowest in the country to the highest.

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While the minimum wage increase went into effect of June 1, BC agricultural crop workers will see their wage increase on December 31st. This is to prevent wage adjustments in the middle of harvest season.

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Stella, the golden retriever from New Westminster, is at the center of a first-of-its-kind ruling surrounding custody of a pet. This ruling stems from a relatively new BC law, a first in the country, that recognizes pets as family members, rather than simply property.

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Following a breakup, a New Westminster woman sought custody of the dog she had adopted with her ex-boyfriend. The ex-boyfriend initially claimed sole custody of Stella the golden retriever due to his name being the only one on the dog’s birth certificate. However, after nearly $60,000 in legal fees, a BC Judge ruled that the couple shall share custody of Stella, on a week on/week off basis.

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Associate Judge Scott Nielsen stated it was clear that both member of the former couple loved the dog and argued that the ruling must consider that animals are sentient beings. Associate Judge Nielsen’s ruling comes three months after amendments to the Family Law Act stated that pets and companion animals are more than just the property of whoever purchased the animal, they are members of the family.

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This decision highlights how the court must now consider eight factors when determining custody of a pet or companion animal under the new legislation. These factors are:

1. The circumstances in which the companion animal was acquired
2. The extent to which each spouse cared for the companion animal
3. Any history of family violence
4. The risk of family violence
5. A spouse’s cruelty, or threat of cruelty, toward an animal
6. The relationship that a child has with the companion animal
7. The willingness and ability of each spouse to care for the basic needs of the companion animal
8. Any other circumstances the court considers relevant

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When asked about the legal process and the financial investment required, the claimant stated that “It was all worth it” and that she would “Honestly […] do it all over again”.

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SOURCE

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Recently finalized protections for gig workers, going into effect on September 3, 2024, are a first in the country!

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The new regulations will provide fairness, minimum-wage requirements and basic protections for the approximately 11,000 app-based ride-hailing drivers and 35,000 delivery workers in BC. With nearly 50% of people in BC having used food delivery or ride sharing apps in 2023, these regulations will protect essential employees whose work many BC residents benefit from.

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The yet-to-be introduced regulations will address the top concerns for app-based gig workers, including:

1. Setting a minimum wage for ‘engaged time’, addressing the issue of unpredictable pay,
2. Setting a minimum per-kilometer vehicle allowance to compensate for vehicle expenses, addressing the issue of low pay,
3. WorkSafeBC coverage for app-based ride-hailing and delivery workers, addressing the current lack of workers compensation,
4. Allowing workers to know the locations and estimated pay associated with a job BEFORE accepting it, addressing the current lack of transparency,
5. Informing workers of reason for suspension and termination OR being provided notice or compensation if terminated without cause, addressing “unfair” deactivations and suspensions,
6. Requiring companies to pay 100% of tips provided by customers to workers, protecting workers access to tips they earned.

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These new protections are a starting point to addressing the issues faced by workers in this relatively new working arrangement. As the new regulations are rolled out the ministry will continue to monitor the need for adjustments. It is important to note that these regulations only apply to app-based delivery and ride share drivers and do not extend to other gig workers.

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