BY: Chris Drinovz, Mike Weiler, Ale Henao, Junki Hong

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In November 2020, Chris Drinovz and Mike Weiler presented a Professional Development webinar for CPHR BC on "The Art of Hiring and Beyond." A full recording can be accessed from CPHR BC website here. In this article, we answered the top 27 questions received during and after the webinar from HR specialists who attended.

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Employment Contracts

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1. What might be fair consideration if you want to re-write a contract with a 20-year employee to now limit their notice to 8 weeks?

Unfortunately, there are no legal principles outlining the exact amount of value or quantum an employee must receive for consideration for a valid agreement.  However, we will review some relevant case law that we consider when advising our employer clients.

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In Lancia v Park Dentistry, 2018 ONSC 751 (“Lancia”) the Court noted that there is no requirement for an employer to give an employee consideration equivalent to the amount of value the employee loses as the result of a new agreement, for example.  Absent fraud or unconscionability, an agreement will be enforceable as long as some type of consideration is exchanged.  

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Gerald Henry Lewis Fridman’s book, The Law of Contract in Canada (Toronto: Thompson Reuters Canada Limited, 2011), is regularly cited on this issue.  Fridman summarizes that the value or quantum of the value exchanged is typically irrelevant (page 90). That being said, the courts will scrutinize consideration that appears to be artificial and look to the intention of the parties when the agreement was made to make this determination.

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Courts have provided some indication as to what is sufficient and insufficient consideration.  A one-time bonus is deemed sufficient consideration for the variation of an employment contract (Lancia).  Consideration does not need to be financial, there are some interesting cases that found sufficient consideration in added value to a worker.  In one, a favourable working environment was found to be sufficient consideration for the variation of an employment agreement (United Rentals of Canada Inc v Brooks 2016, ONSC 6854).  In another, permitting an employee to telework was also found as sufficient consideration (Riskie v Sony of Canada Ltd, 2015 ONSC 5859).

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There is also some legislative indication for particular fields.  The Bankruptcy and Insolvency Act defines adequate value of consideration as fair and reasonable money value with relation to the known or reasonably to be anticipated benefits of the contract, dealing or transaction.

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Given the recent case law developments  including the Uber Supreme Court of Canada decision the concern here is that unconscionability will become more important so minimal consideration we think would be risky whereas more reasonable consideration will help employer (in the form of a one time bonus, raise, more favourable work conditions or a combination).

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2. Should the employer have an employment contract specifically for the probation period and then once hired permanently an employment contract at that point?

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There should be a probation period and then a provision for termination after the probation.  The provisions would normally be in the same contract. Employers are advised to use the probation period to actually test the suitability of the employee.  It is both the employer’s and employee’s interests to make sure the employee is a good fit.

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The contract in BC can provide that during a 3-month probation the employer can dismiss for lack of suitability without notice or pay in lieu.  After 3 months, the Employment Standards Act (“ESA”) be complied with and a minimum one weeks’ severance must be provided.  Generally, the probation period is the three months but if an employer wants a longer probation period they can choose for example a 6 months’ probation. But keep in mind, regardless of the length of the probation period once the 3 months passed the employee is entitled to the minimum notice or pay in lieu under the ESA.

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3. Can we renew contracts with employees to accommodate changes in the Employment Standards Act?

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This depends on the changes you would like to make and the effect that would have on the employee’s rights - are you now limiting termination pay through your changes? If so, see answer from Question 1.

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4. Is it legal to cut % of the salary if an employee works from home? What % is reasonable?

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If employee is agreeable: When reducing a salary (or making any changes to an employment contract – whether written or verbal), employers should try to get the employees to accept the change (in this case a reduction). Such an agreement should be in writing and may well constitute a defence to a potential future constructive dismissal claim. Further even in the absence of a written agreement if the employee continues on in the employ under the altered terms without complaint then likely she will have been found to have condoned the change.

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However, if employers simply want to unilaterally impose a change (i.e. wage cut) then they run the risk of creating a constructive dismissal. A constructive dismissal will occur when an employer unilaterally imposes a fundamental change to employment terms or otherwise changes fundamental terms. The courts ask whether the conduct evinces an intention on the part of the employer to no longer be bound by the employment contract.

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While pay and benefits are clearly central to the employment relationship it is clear that some reductions in remuneration will not constitute a constructive dismissal. In Pavlis v HSBC Bank Canada 2009 BCSC 498 the court considered how big a decrease in pay would have to be to constitute a constructive dismissal. Generally the court stated that a reduction in salary of up to 10% would not be a fundamental breach; a reduction 14—17 % may amount to a fundamental breach if another significant or substantial unilateral change occurs and any reduction beyond 20% will on its own will be a fundamental breach.

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Again these cases will have to be decided in Post COVID world. If the change does not constitute a constructive dismissal an employee may have a right to claim wages under the ESA which now provides that claims can go back 12 months.

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5. We are rolling out new employment agreements b/c ours does not have a terminations clause. What is a reasonable amount of fresh consideration? Can we tie this in with salary increases or year end bonus?

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Yes, you can. See answer to Question #1 re: consideration and ensure you have a properly drafted termination clause that will hold up in court (language is very important and ensure the correct specific provincial legislation is referenced).

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6. If you have senior employees that were not hired with a written only verbal contract is there a way to now draft a contract and have the employee sign going forward? i.e. if the employee has many more specific responsibilities than when they were first employed

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To hold a written agreement executed by an existing employee valid, fresh consideration (i.e. value to the new commitment) to the employee is required. This is because as we modify existing terms and clarify the employer's expectations about matters such as termination, confidentiality, competition, solicitation and etc., the employee and the law would consider this as a new employment agreement. For more details please read answer to Question 1 above.

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7. What happens if an employee refuses to sign an updated employment agreement (adding termination clause) with fresh consideration?

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An employer has two options in dealing with an employee who refuses to accept a change to his or her terms of employment:

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1. The employer can acquiesce to the employee’s refusal, meaning that the original terms and conditions of employment will continue to apply; or
2. The employer can terminate the employee with proper notice and then offer re-employment on the employment contract it seeks to implement.

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Terminated employees have a duty to mitigate their losses, so if they refuse the new terms once terminated and then bring a wrongful dismissal claim against the employer, the refused job can be used to reduce their wage loss damages (as they could’ve had a similar employment but didn’t accept it).

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These cases can be tricky so we highly recommend you consult with an experienced employment lawyer.

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8. Looking to set up a company with the aim of supplying janitors to go work for my clients on an hourly basis. The janitors will essentially be doing the job of home cleaning and I intend to hire them as contractors who will be paid for the hours they work. What will be the labour law requirements.

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Please read our recent article which summarizes the law around this very issue here. Our advice re: independent contractors is usually that such arrangements are fraught with danger as courts and tribunals will find in many cases that the person is both in fact and in law an employee and not an independent contractor notwithstanding what the written agreement says. This is because independent contractors have their rights significantly limited when compared to employees.

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We highly recommend that you contact an experienced employment lawyer to ensure your contract reflects (as much as it can) a true independent contractor relationship.

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9. When you have employees on fixed term contracts, are you able to lay them off without having to pay out the remainder of their contract (ie: during Covid19), if there is no language around that in the original agreement?

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In any employment relationship, absent seasonal work and the right to lay-off being included in a written contract, any temporary layoff is generally treated as a constructive dismissal under the common law, triggering the employer’s severance pay obligations.

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A further danger with fixed-term contracts is that the employer agrees to retain the employee for a fixed period. Even if the employer needs to terminate the employee, it must pay them the remainder of the contract unless the contract has a termination clause.

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Policies

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10. Can you please expand on best practices of the "use it or lose it" vacation policy?

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I believe this was in the context of what terms might be in the contract signed at hiring.  Most employers want their employees to take their allotted vacation.  It avoids accumulating debt and most importantly employees should in my view use their vacation to hit the refresh button.  So generally we recommend that employees be required to take their vacation each year with a usual exception being to allow them to carry over a maximum of one or two weeks each year.  If they do not use their vacation beyond the Employment Standards Act (“ESA”) minimums then they run the risk of losing them.

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Many employers provide for vacation and vacation pay well beyond the minimum standards in the ESA.  This is especially true of senior managers.  The problem can be that those managers do not take their allotted vacation and often no one is checking them.  So they keep track and then for example at the time of termination they claim a huge amount of vacation pay.  I had a case where the CEO of a large financial institution was being let go and after the parties had negotiated the usual severance terms the CEO claimed he had over $150,000 in vacation pay owing.  For some reason such continuing liability was not recorded and there were no accurate company records.  The case got settled but it is a reminder to be on top of vacation time and pay.

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11. What are the best methods for employee input when creating or changing an employee handbook?

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This really depends on your organization, the size of your workforce, and the nature of the changes you are considering. One option is to send out a survey to all employees regarding the topics proposed to be changed to canvas interest and general attitude; you can then follow up with individual employees as necessary to discuss and request further input for consideration. Other options may include holding a townhall meeting with employees or creating a committee responsible for amending the handbook, which can include an employee representative.  

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Terminations

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12. Could you let us know what case the 1 million dollar wrongful dismissal claim referenced in the intro was?

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The case we were referring to where an employee was awarded 1.1 million after being terminated is:  Matthews versus Ocean Nutrition Canada Ltd. 2020 SCC 26. We summarized the case in a blog article available here.

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Interviews & Human Rights

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13. For the interview question regarding being able to lift x lbs on a regular basis - does the employer have a duty to accommodate if there is a job requirement to lift weight but there may be accommodations possible?

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The question is whether someone is excluded because they cannot meet the job requirement.  Generally, if a requirement is a bona fide occupation requirement (meaning a requirement that is necessary for the performance of a job), an employer can choose not to hire an applicant who can’t satisfy the requirement. If an applicant makes a human rights complaint, then you would have to satisfy a human rights tribunal that the requirement was necessary for the proper performance of the job.

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Where an existing employee is injured and can no longer meet the lifting requirement due to a physical disability, the employer has a duty to accommodate that employee, up to the point of undue hardship. The concept of accommodation up to undue hardship is too complicated to explain in this answer but it may involve creating a modified work schedule, modified duties, or providing other accommodations for the employee. Usually, the duty to accommodate does not require the employer to create a new position for the employee, but may require transferring duties between employees.  

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14. By using virtual interviews, Zoom, there is a record option. Should or is it recommended to record or not record? as well as with virtual the candidate may be recording. Thoughts around that.

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In an interview setting, both the interviewer and the interviewee can record the interview as long as the parties to the conversation consent. On whether to record, we first suggest that you think about why one would want to record. Our initial thoughts go to the possibility of a complaint and admission of the recording as evidence in support of or defence against the complaint. On the other hand, the interviewee or interviewer may want the recording just for training purposes.

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In practice, we would suggest that you bring up your expectation about recording as part of the interview process and confirm consent at the beginning of the interview.

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As for being recorded, depending on the program you use to set up the interview you might have settings available to only allow the host (you) to record. However, you wouldn’t be able to know if the interviewee recorded you unless this is an issue later on. In any event, we suggest that you act and conduct the interview in good faith and be sure to take good notes.

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15. What would be the best way to ask during the interview about the applicant's work visa or immigration status?

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We don’t recommend any specific references to citizenship/immigration status or country of origin, but rather a more general question such as “Are you eligible to work in Canada?”

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You’re not strictly prohibited from asking questions regarding citizenship. That said, employers who do ask questions based on Code-protected grounds risk exposing themselves to significant liability, particularly in cases where the job applicant is not successful (as in the Imperial Oil case we reviewed).  

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In our view, it is permissible to ask and require that new hires be eligible to work in Canada at the time of hiring, but to require permanence may be discriminatory under human rights legislation as was found in the Imperial Oil case.

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16. Is there any concern with asking candidates for their current compensation and compensation expectations and presenting this in writing to the hiring manager (list of all candidates with their current and expected compensation)?

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You can ask candidates for their current compensation, however keep in mind that some might be obligated under their current contracts to keep their salary confidential. In that case, you shouldn’t insist they answer that question.

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There is no issue with providing current and/or expected compensation for candidates to the hiring manager, but keep in mind this information should be kept private otherwise.

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Reference Checks

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17. I find candidates are now more hesitant to provide the current employer reference. What do you advise?

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A candidate might refuse to provide current employer references especially if they have not yet given notice. In these cases, you can discuss and canvass whether there is someone at their current work in a more supervisory or senior role who might be comfortable providing the reference (non management).

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18. Many companies only provide proof of employment (i.e. start date/end date) or basic facts like job duties.  How do you go about getting a reference in that case? Is this a trend, is it getting harder for employers to get references?

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Yes, based on the many questions received on this topic, it appears a lot of employers are having trouble getting more than just basic facts from past employers.

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Here are some suggestions:

• Prepare specific questions to ask during the reference call – it would be harder for the past employer to not give you any information if you are asking direct questions versus if you just ask them to tell you about their past employee, or if you ask about any concerns;
• Consider whether the lack of information is a red flag – generally (but not always) if a good employee leaves an employer on good terms, they would likely get a proper reference;
• Address the lack of information with the potential candidate (either before calling the references or after), and see if they would be willing to go back to the reference and ask them to provide more details – this might not always be an option;
• Ask the potential candidate for additional references willing to share more details.

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Some employers might simply not be aware of the principle of qualified privilege and want to be cautious: but as long as you’re acting in good faith when providing an honest reference, you are likely protected from liability for any statements you make.

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19. Should we be conducting reference checks for entry-level positions as well? Even for retail Sales Associates?

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Yes, we highly recommend conducting reference checks prior to hiring any employee, regardless of their position. Even entry-level employees have the potential to cause significant damage to the business or its reputation, so you want to do your best to know who you’re hiring. If there are no references that can be contacted, at minimum a Google Search should be done.

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20. When you say check all references, are you saying call all employment on their resume?

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Yes, we recommend at least calling all the references listed, but also calling all past employers listed on the resume.

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21. Does qualified privilege also apply to past co-workers or just supervisors/managers? Do you know if the same protection applies in all provinces when giving references and being candid and acting in good faith?"

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Yes, it applies to anyone giving a reference on behalf of the former employer.

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We relied on British Columbia and Ontario case law regarding the qualified privilege principle. However, these principles come from the common law defences to the tort of defamation which may apply across Canada. That being said, each province interprets the law differently and we recommend following up with a lawyer in your particular jurisdiction.

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22. How can you vouch if the references provided by the candidate are reputable?

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You can’t know for sure, but you can do your due diligence to check out the references provided by a candidate. Take a look at the company’s website and their team, and include some questions inquiring what their work relationship was, if the candidate worked directly with them, how long did they work together etc.

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23. In regards to reference check: are you allowed to ask questions such as “were there any concerns during the employment period for the candidate?” or “why did the candidate leave their previous employment?” What are you allowed to ask and NOT to ask?

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Subject to human rights and privacy legislation, you are allowed to ask any question that pertains to the suitability of the potential candidate for the job. To tie this back to one of the questions above, keep in mind that open questions like that require the other person to work to put together an answer. Asking more direct questions instead would be a better practice and usually yields more material information – don’t try to make them do your job for you; some examples include:

• Instead of “were there any concerns during the employment period for the candidate?”
• Consider asking: “was the employee punctual?”, “was the employee reliable” , “did the employee get along with other team members?”
• Then at the end you can ask as final scoop: “is there any reason I shouldn’t hire this person?”

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24. We always get permission to check references first. With respect to checking past employers not listed, you had mentioned we could do this but had to notify the candidate. Do we need the candidate's permission?

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You don’t need to notify the candidate that you will be contacting past employers not listed as references, however it is recommended you do so. You don’t need their permission, however the unlisted employer may not have the employee’s permission to disclose any personal information.

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Similarly, if you receive a reference call for a past employee and you don’t have prior notice or permission to disclose information regarding that employee, you should not be discussing any personal information to another employer until you get permission.

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25. Do candidates have a right to see written reference reports and the name of person who gave the reference?

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An individual can make an access to information or personal information request for any records containing their personal information. This may include notes or documents from or regarding references. However, the requesting individual would not be entitled to information which identifies parties other than themselves, including the third party who provided the reference. So, if you receive such a request, it is necessary to redact the personal information (including name) of anyone else mentioned in the notes. If you’re unsure how to proceed, you can contact our Employment Group for legal advice.

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Similarly, if you receive a reference call for a past employee and you don’t have prior notice or permission to disclose information regarding that employee, you should not be discussing any personal information to another employer until you get permission.

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26. What information from Google or Social Media would be grounds to not hire someone?

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In this day in age you can find a multitude of information about an individual on social media or Google in general. Some information you might find could include a characteristic or behaviour that would not align with your organization’s culture and values. Maybe you come across an article they wrote in the past that goes against the type of person and image needed for the specific position, or maybe they leave public posts/comments that are unprofessional or discriminatory on social media posts or news channel posts.

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One big caveat is to keep in mind that you can’t refuse to hire someone based (even partially) on a human rights ground or you will open the employer up to the danger of a human rights complaint.

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Another caveat is privacy – you can search and access public information, but if the candidate has private social media account(s) you should not try to obtain access through someone else’s account or create a fake account to friend them. This could result in serious privacy violations and liability for you and/or the company.

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HR & Covid-19

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27. Any comment on a most commonly missed by HR practice or policy you can share or comment in relevance to covid-19 infection control?

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We’ll give a non-legal answer to this one, as most businesses have been following recommendations from WorkSafeBC or other workers compensation authorities quite well – one of the main practices that can prevent infection in the workplace is open and consistent communication with your employees combined with proper daily assessments of employees prior to entering the workplace. We prepared a Screening Form that you can access here. Note that this Form is based on the applicable health orders in British Columbia and may not be compliant in other jurisdictions.

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This is a very stressful and trying time for everyone, and the extended length of the pandemic has been especially tough on some. There are people (employees) who might be watching the news daily and reading all the updates from the government, but there are also others who can’t always follow the news or updates. This is why it is really important that the employer keep everyone informed, encourage working remotely where possible, highlight the importance of both at work and outside of work behaviour and communicate the possible consequences for all if employees are not diligent in following government health orders.

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Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

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BY: ARJUN HAIR 

In 1994, Walt Disney Pictures released the instant-classic Christmas movie, The Santa Clause, inadvertently introducing the world to the often confusing but ever-so-important area of contract law.

If you haven’t seen the film or either of its two sequels in the 26 years they have been available, consider this your spoiler alert.

In the first act of the film, Scott Calvin (Tim Allen) runs outside after hearing a clatter on his roof. He sees Santa Claus on top of his house and yells at him, startling poor Santa into falling off of the roof and disappearing. All that remained was the famous red suit and Santa’s business card, on the back of which read the words “If something should happen to me, put on my suit. The reindeer will know what to do.”

Scott then puts the suit on to appease his son, unknowingly agreeing to be Santa Clause forever, or until something happens to him (like falling off a roof).

At the North Pole, the head elf, Bernard (David Krumholtz), explains to Scott that by putting on the suit he agreed to the Santa Clause, as in the contract written as fine print along the border of the card. The contract reads (in print so fine it requires a magnifying glass):

“ln putting on this suit and entering the sleigh the wearer waives any and all rights to any previous identity, real or implied, and fully accepts the duties and responsibilities of Santa Claus in perpetuity until such time that wearer becomes unable to do so by either accident or design.”

For those worried parents concerned about ending up in the same position as Scott Calvin, fret not because this contract is not enforceable in the slightest.

A contract requires the following elements:

• Offer and acceptance;
• Intention to create a legal relationship;
• Consideration;
• Certainty; and
• Privity

Even when all of those elements are there, there are a number of other issues that could cause part or all of a contract to be unenforceable.

Offer and Acceptance

In the movie, the offer is sort of made in the presentation of Santa’s card, but since the contract is in such tiny print its debatable that Scott Calvin really received the offer at all.

Acceptance was the point that Scott and Bernard debated during Scott’s first trip to the North Pole. Scott insists that he did not agree to the contract, and Bernard insists that he accepted by putting on the red suit and getting in the sleigh.

Perhaps surprisingly, Bernard is right. The contract is “unilateral”, which means its possible to accept the terms simply by doing an action that triggers acceptance. A common unilateral contract you might see is a “missing dog” poster that offers a monetary reward. If you find and return the dog, you have entered a contract with the dog’s owner and are entitled to the reward.

Scott did the actions that trigger acceptance for this unilateral contract, but that does not mean it is enforceable. Scott did not know about the contract, so he did not intend to agree to it.

Intention to Create a Legal Relationship

The intention requirement is pretty straightforward. All parties to a contract must intend on entering a legal relationship that holds them all accountable if the contract is breached. Scott did not know about the contract so he could not have intended to enter a legal relationship.

Consideration

When it comes to contracts, there needs to be consideration flowing both ways. Put in normal words, all parties need to be receiving some sort of benefit.

One party gets the benefit of having a successor to the previous Santa, but what does Scott get? You could say that Scott’s benefit is getting to be Santa, which is admittedly pretty awesome. Would you accept a contract that says you have to be Santa forever, and in exchange you get to be Santa forever?

Certainty

The certainty requirement means that the parties need to have a reasonable idea of what they are agreeing to. Let’s assume Scott saw the contract and agreed to it on purpose. The contract is so vague that it would be pretty much impossible to enforce.

The contract requires Scott take on the “duties and responsibilities of Santa Claus” but doesn’t explain what those might be. Everyone knows the main things, like checking the list twice, delivering presents, eating cookies, etc. but what else is there? Cleaning the reindeer? Paying the elves? Mall meet-and-greets?

The contract also binds Scott to performing these duties “in perpetuity” until he is “unable to do so”. This is also very vague – would catching the flu count? What about a scheduling conflict?

Even if Scott Calvin wanted to accept the contract, it would be unenforceable because it is too uncertain.

Privity

The idea of privity is that only the parties of a contract can try to enforce it. That brings up the question of who the parties are in this situation. We have Scott Calvin on one side, but who is the other party? Maybe its more than one party?

The previous Santa disappeared after falling off Scott’s roof, so it could be his estate. Some due diligence would need to be done to figure out exactly what his estate looks like and who is in charge (probably Bernard).

The other party could also be with Santa’s workshop, assuming its some sort of organization that is legally able to enter contracts.

Since we know Santa’s workshop is in Canada, with an address of North Pole, Canada H0H 0H0, it’s possible the workshop is a federal corporation. If this is true, the directors of the workshop could sue Scott to try and enforce the terms.

There is no real way to figure out who the other parties are to the contract since the contract was not signed and it did not list the parties.

The Bottom Line

If Scott Calvin decided he did not want to be the new Santa Claus and he was sued for it, he would almost certainly win that battle. He did not mean to accept the contract, the terms of the contract are too vague, he does not receive any consideration, and it is not even clear who the parties are.

If you find yourself the unwilling successor to Santa Claus, or if you have any other contract issue, contact our team at Kane Shannon Weiler LLP.

From everyone here, we wish you and your family a safe and happy holidays, and a very merry Christmas!

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact us.

BY: Junki Hong 

With COVID-19 still raging, employers and employees continue to face challenging situations and decisions. The BC Human Rights Tribunal (the “Tribunal”)  continues to indicate that hasty terminations can have dire consequences and thus, should be carefully thought through. An example we will cover in this article is from their 2020 decision in Benton v Richmond Plastics, 2020 BCHRT 82.

Rachel Benton who made the complaint to the Tribunal was hired to work for Richmond Plastics Ltd. (the “Employer”). On her first day of work, Ms. Benton told a co-worker and management of a number of mental health conditions she had. On that same day, the Employer fired Ms. Benton. The Employer’s Chief Financial Officer told Ms. Benton that she was fired because her medications and/or mental health made the officer feel “uncomfortable”. Ms. Benton complained to the Tribunal that her disabilities were a factor in the termination of her employment. The Tribunal held that the Employer had indeed violated s.13 of the Human Rights Code (“Code”).

Background

The Employer hired Ms. Benton as a receptionist/administrative assistant. On her first – and last – day, Ms. Benton arrived early and began her training. By 10:00 am, the co-worker training Ms. Benton decided that Ms. Benton was not a good fit and further was incompetent: the co-worker reported the same to the Employer (note that Ms. Benton’s work competency was heavily disputed by Ms. Benton and her previous employer supported that Ms. Benton was in fact competent).

Following this brief stint of training, Ms. Benton had a facility tour and filled out forms from a human resources employee. In so doing, Ms. Benton disclosed medications she was taking and in communicating with the co-worker, told her that she had a number of mental illnesses.

The co-worker had reassured Ms. Benton that the Employer was very “accepting”. Before lunch, the same co-worker again went to the Employer to tell that Ms. Benton was not a good fit. In the afternoon, Ms. Benton was invited to a meeting and accused of her failure to tell about her medication.

Ms. Benton was told that her taking of the medication or mental disabilities, made the Employer feel “uncomfortable”. The Employer had provided no other explanation for Ms. Benton’s termination: the only explanation was her mental health. Both the start of her employment and the unanticipated and abrupt end occurred within the span of 6.5 hours.

Analysis

The Tribunal was clear that it was not necessary for Ms. Benton to prove that her mental illnesses were the only or overriding factor in the Employer’s decision to terminate but simply that they were a factor.

In view of the foregoing, the Tribunal held that it was more probable than not that Ms. Benton’s disabilities were a factor in her termination. This is somewhat alarming as the President of the Employer who decided to terminate Ms. Benton’s employment did not know about the mental disabilities. However, the Tribunal said that the CFO who hired and fired Ms. Benton knew and had sufficient role and authority.

In view of the nature of discrimination against Ms. Benton, Ms. Benton’s vulnerability, and the effect on Ms. Benton, the Tribunal awarded Ms. Benton $30,000 as damages for injury to her dignity, feelings, and self-respect. Further in consideration of the effects that discrimination had on Ms. Benton, the Tribunal awarded 12 months of wage loss, amounting to $35,000.

Takeaway

It is crucial to remember that the Tribunal stressed that mental disabilities did not have to be the only cause, and not even the principal cause for Ms. Benton’s termination.

While the Tribunal acknowledged that there may be other non-discriminatory factors that contributed to Ms. Benton’s termination, what really mattered was that the mental disabilities were in fact, a factor.

Another major point to remember is that the effect of the discrimination on the terminated employee is not within the employer’s control or foreseeability. In this case, the Employer was ordered to pay $65,000 in damages despite only having Ms. Benton employed for one day.

This case serves as a reminder for employers to be cautious in their decision making and the reasons given for terminations. This is particularly important when an employee has disclosed health issues to anyone at the workplace.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

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BY: ARJUN HAIR

Realtors are held to a high standard of professionalism, and have a legal duty to act in the best interest of their clients. Acting in their clients’ best interest involves disclosing information to their client where appropriate, and avoiding conflict of interest. This article aims to explain some of the more common situations in which a realtor is obligated to disclose certain information to their clients, and how they are supposed to avoid conflicts of interest.

For more thorough details on realtors’ legal obligations, read the Real Estate Rules, which are publicly available on the Real Estate Council of BC’s website here.

What is "Fiduciary Duty"?

When a realtor becomes your agent, you enter a fiduciary relationship with them where the agent owes you a fiduciary duty. Under this relationship, the realtor is required by law to act solely for your benefit, even if that results in a detriment to themselves.

This duty is the driving force behind all of the rules governing how realtors are to engage with their clients and represent them.

Disclosure Requirements

As a client, there are certain things that realtors are obligated to disclose to you in order to fulfill their fiduciary duties. The specific duties are listed under the Real Estate Rules, Division 2.

Disclosure of Representation

Before a realtor can represent you in a real estate transaction, they must first disclose to you their duties and responsibilities, and provide you information on how to file a complaint about their conduct should they act unprofessionally. In BC, this disclosure is standardized and you can see a copy of the disclosure form here.

Disclosure of Interest

Realtors are required to disclose whether they, or someone they’re close to, are the one buying your property, or if they’re the one selling you the property. This disclosure must be made even if the property is being bought or sold by the realtor indirectly. This is an important disclosure because it indicates that the realtor has an interest in the subject of the deal.

Disclosure of Risks to Unrepresented Parties

In some real estate transactions realtors find themselves acting for one party while the other party remains unrepresented. In these situations, the realtor has to disclose to the unrepresented party that the realtor is limited in how they can help, as the realtor has a duty to their own client above everything else. The realtor has to recommend that the unrepresented party seek professional advice from someone else.

Disclosure of Remuneration

Understandably, realtors are required to disclose the amount they anticipate being paid as a result of the services they provide to their clients. This should be disclosed as a dollar amount calculated based on the value of the offer for purchase of the property.

If a realtor expects to receive, directly or indirectly, any sort of income other than what they are supposed to receive directly from a client, they are required to disclose the source, the amount, and any other relevant facts about this additional income. For example, if a realtor receives a kickback for referring their client to a mortgage broker, lawyer, home inspector, or bank, they are required to disclose that to the client.

Avoiding Conflict of Interest

Dual Agency

Realtors are unable to represent the buyer and the seller in the same transaction. This is known as “dual agency” and has been prohibited since 2018.

If a realtor finds themselves with multiple clients involved in a single transaction, the realtor has to either choose a single client to represent, or opt out of representing anyone in that deal. If they decide to pick one of the clients to represent, the realtor needs to have all of the parties sign a written agreement which states:

• The parties acknowledge the realtor is terminating their relationship with all but one of them due to the conflict of interest;
• A description of the conflict of interest;
• That the realtor may have confidential information about them and is prohibited from disclosing any of it;
• That the realtor may be limited in their ability to advise their remaining client due to their duty to maintain confidentiality for their now former clients; and
• A recommendation that the realtor’s now former clients seek independent professional advice.

Bottom Line

With rules and regulations being regularly updated by RECBC, it’s important for realtors to stay up-to-date with what their obligations are, and for clients to know what information they’re entitled to receiving.

At Kane Shannon Weiler LLP, our clients include realtors and property owners, and we’re equipped to assist with every aspect of real estate transactions from conveyancing to real estate disputes. Get in touch with us to speak to one of our real estate lawyers!

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact us.

BY: ARJUN HAIR

Here at Kane Shannon Weiler LLP, one of the most common questions our corporate lawyers get asked is, “should I incorporate?”

To answer that question properly, we should start at the beginning.

What Does Incorporating Mean?

Incorporation is the process of setting up a corporation, usually a company or a society. The rules around setting up a corporation in BC are set out in the BC Business Corporation Act. It’s also possible to set up a corporation federally under the Canada Business Corporation Act.

For the sake of keeping things simple, we’re just going to talk about setting up a company in BC.

Advantages to Incorporating

Creating a Separate Legal Entity

One of the main benefits to incorporating is that it creates a legal separation between you as an individual and your business. For example, your company’s revenue will not be on your personal income tax, and your company’s debt will not count as your personal debt.

If you have not incorporated and are working for yourself, you are probably a sole proprietorship. This means that you can be held personally liable for everything your business does, because you are your business and your business is you. This means that if your business owes money to someone, they can come after your personal bank account to collect.

Since your company’s creditors can only claim your company’s assets and not your personal one, companies have “limited liability,” which is why some company names end in “Ltd.” or “Limited.” On the flip side, as a sole proprietor your business’ creditors can come after your personal assets as well as your business assets, making it “unlimited liability.”

Perpetual Existence

With a sole proprietorship, since you and your business are one and the same, the second you stop working is the second your business ceases to exist. Your kids cannot take over the family business if *you* are the family business.

If you incorporate, your company can continue operating long after you retire. This is attractive for a few reasons. One reason, as already mentioned, is that you have the possibility of keeping the business in the family if you want your kid(s) to take over. Another reason is that if your business continues to operate after you retire, you could continue to collect dividends if you keep your shares in the company.

Raising Capital

It is easier to raise capital through a corporation. Through a corporation you can sell shares of your company to investors. Investors typically buy “preferred” shares in a company which generate a return on investment through guaranteed dividends. This is known as “equity capital” because you are raising money based on the value of your business and the investor’s belief that the business will continue its success enough to be able to keep paying out dividends.

It is also possible for corporations to raise capital through debt, by entering loan agreements. A business loan works just like any other loan, in which you borrow money that you have to pay back with interest.

Disadvantages to Incorporating

Unlike a sole proprietorship, which is free, incorporating costs money. Not only at the start when you initially file your documents, but also on an annual basis as you need to pay the government an annual maintenance fee. On top of that, you will have additional administrative costs, such as separate tax returns and financial statements for your company.

Things to Consider

If You’re Concerned about Liability

You should certainly incorporate if you are concerned about liability. Incorporating can protect you in most cases from being held personally liable for debts or obligations of your company.

If You're Concerned About Tax Savings

If your business is generating more money than you need for your lifestyle, you can likely save money by incorporating. Let’s say you only need $80,000 per year to keep up your lifestyle, but your sole proprietorship generates $200,000 per year. Without incorporating, your personal income tax will be based on the full $200,000, resulting in approximately $69,000 of personal tax.

Alternatively you could incorporate and earn business income through a company. The first $500,000 of business income earned in a company is taxed at a low preferential rate of 11%. If you incorporate and leave $120,000 in your company and pay yourself $80,000 your overall tax would be approximately $33,000 of corporate and personal tax, resulting in a tax deferral of approximately $36,000.

If You Want to Sell Your Business Eventually

As a sole proprietorship you could sell all of your assets when you decide it’s time to move on, but there are things you can’t sell, such as any contracts you entered for the business, including employment contracts.

With a corporation, you can sell the entire thing, including its name, goodwill, and the contracts with employees and clients will remain intact since the contracts are with the corporation, not with you personally.

Bottom Line

When deciding whether or not to incorporate your business there is a lot to consider. If after reading this article you are still unsure what the right choice is for you, come talk to us!

The business law team here at Kane Shannon Weiler LLP is more than happy to answer your questions and help guide you to making the right decision for your business.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact us.

BY: MIKE WEILER

One of the toughest things for a lawyer to do is to convince his client, especially when that is the CEO or owner, that he or she is simply wrong when they thought they had a good case.  This is especially true when it comes to termination for just cause.  An employee may well have engaged in serious misconduct but given the courts’ high standard that needs to be met to prove just cause, the client simply has to come to grips with the fact that in law “being right (i.e. the decision to terminate) doesn’t necessarily make it right at law (i.e. termination for just cause).  Often clients think that folding on the issue of just cause will be a sign of weakness so they may well want to proceed to court even where there is a risk of losing.  They are often prepared to fight a case simply on principle.  Where there is an arguable case on the evidence that is understandable.

But in some cases the evidence is so clear that a claim of just cause for termination has no legal merit that a lawyer has to convince the client to not proceed to trial on the issue.  Not only will the client likely face a huge damage claim they will also incur significant legal fees and may well have to pay the plaintiff’s legal fees.  Worst of all the court decision may reject the client’s evidence and find that the client is not to be believed.  It is never an easy task to explain the court’s Reasons for Judgment to a client in these circumstances.

A recent decision of the B C Supreme Court illustrates this principle.

In Hrynkiw v Cental City Brewers & Distillers 2020 BCSC 1640 the owner of the company terminated his 56 year old CFO of 6 years’ service and argued all the way through trial that he had just cause for a summary termination.  He claimed that the Plaintiff was only entitled to 2 weeks’ vacation whereas the Plaintiff had been paid 4 weeks since he was hired. Further he claimed that the Plaintiff falsely claimed an increase in his share bonus from $25,000 to $50,000.

At trial the Defendant argued just cause for termination based on the following:

1. The “unauthorized” share bonus payments and the falsification of vacation records
2. The alleged “theft” of the Plaintiff’s personnel file at the time of termination
3. The alleged failure of the Plaintiff to purchase shares with his share bonus compensation which was a term of that bonus

Not only did the Defendant fail to prove cause based on the above 3 items the court made it clear there was simply no basis in fact to make such allegations.  Further the owner rushed to judgment and made the decision to terminate without any investigation of the facts—the owner’s investigation of the alleged misconduct was “adversarial and biased from the start” and he made “no genuine effort to review the full circumstances.”

Since there was no written employment contract nor any documents regarding the increase of the share bonus the court had to decide the issue of credibility between the Plaintiff and Mr. Frost the owner of the Defendant.  After reviewing the principles of law that applied and the overview of the evidence the court stated:

The principles that govern the assessment of the credibility of a witness are summarized in Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, as follows:

[186]    Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides... .The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally... . Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [Citations omitted]

[86]         Generally speaking, I found the plaintiff to be a more credible witness than Mr. Frost. The plaintiff’s evidence was internally consistent, and consistent with the documentary evidence and the evidence of witnesses other than Mr. Frost. The plaintiff answered questions directly and concisely. He was not defensive or argumentative in cross-examination. He was clear in his memory of relevant events, and his evidence did not change over the course of direct and cross-examination.

[87]         Mr. Frost, by contrast, was a difficult witness. He was combative and argumentative in cross-examination. He was frequently evasive in answering direct questions and he disparaged plaintiff’s counsel with remarks like “I think you actually know, counsel, I think you’re a very smart fellow”. Mr. Frost’s memory was selective. He admitted to having no clear memory about critical events like the meetings that preceded his initial hiring of the plaintiff. When pressed in cross-examination about the accuracy of his recollection regarding Central City’s organizational charts, Mr. Frost responded “clearly I am not that detailed, counsel”. As the same time, he claimed to recall discrete facts that supported his case with absolute clarity that left no room for doubt or ambiguity. Mr. Frost was not careful or restrained in his evidence about the plaintiff’s alleged wrongdoing. For example, he testified to his certainty that the plaintiff had stolen his own personnel file from the Central City office even while acknowledging he had no evidence to support such an accusation. Mr. Frost’s evidence was, in important respects, inconsistent with the documentary record and the evidence of other witnesses.

[88]         I will more specifically address the difficulties I had with Mr. Frost’s evidence in resolving the particular issues in dispute. As a general comment, where the evidence of the plaintiff and Mr. Frost conflicts, I prefer the plaintiff’s evidence. [Emphasis added]

It seemed clear from reading the decision that the Defendant’s evidence would not support any of these serious allegations.  Among other things the documentary evidence and the fact the Plaintiff was paid for 2 years at the higher bonus rate and had taken 4 weeks’ vacation from the start of his employment was totally inconsistent with Mr. Frost’s evidence.  In one case a witness called by the defence gave evidence contradicting Mr. Frost’s evidence and supporting the Plaintiff’s evidence.

The Defendant insisted throughout the trial that the Plaintiff had stolen his personnel file—there was no evidence whatsoever to support that serious allegation.  In fact Mr. Frost admitted such an allegation was based solely on speculation. Allegation #3 was only made in legal argument after the trial and was without foundation.

Turning then to the issue of damages the Plaintiff hit a home run and succeeded 100% in his claims.

Notice:          

The Plaintiff claimed 12 months’ notice; the Defendant argued 6-7 months.

       Court Held:     12 months

Damages:

The Plaintiff claimed $118,492.76 after taking mitigation into account; the Defendant argued damages should not include any damages for the share bonus during the notice period thus reducing the damage claim substantially.

Court Held       Damages of $118,492.76

Share bonus to termination

The Plaintiff claimed $33,513.92 for unpaid bonus to termination date; the Defendant argued that no bonus should be paid

Court Held       damages of $33,513.92

Accrued Vacation

Although relying on the Defendant’s payroll records the Plaintiff was awarded $14,903.87 for accrued vacation

Aggravated (mental stress) damages

The Plaintiff argued that the defendant had breached its duty of good faith and fair dealing in the manner of dismissal by failing to conduct a balanced investigation and advancing and maintaining meritless allegations of serious misconduct against the Plaintiff,

The court found in favour of the Plaintiff on both counts:

Even by the defendant’s account, the plaintiff had been a loyal and competent employee of Central City for over six years up to the time that he was, virtually overnight, locked out of the office and terminated without notice. To the extent that the defendant had concerns as a result of the events around the plaintiff’s request for a share bonus payment in June 2018, the plaintiff deserved to have those concerns addressed through a process that was fair, objective, and respectful. In my view, the defendant’s closed mind and failure to objectively investigate the circumstances before purporting to terminate the plaintiff’s employment for cause was unfair, unduly insensitive to the plaintiff, and constituted a breach of the defendant’s duty of good faith and fair dealing.

The unfounded allegations of cause were also a breach of the duty of good faith and fair dealing that was entirely forseeable that the Plaintiff would suffer mental distress and reputational harm as a result of such conduct in the course of dismissal.

Court Held      

Plaintiff awarded $35,000 aggravated damages.  NOTE those damages are not taxable so worth substantially more to Plaintiff

Punitive Damages

The Plaintiff claimed punitive damages

The court rejected this claim but a careful review of its reasons shows that it would likely reward the Plaintiff by awarding Special Costs i.e. full indemnification for legal fees.  The court noted punitive damages are rarely awarded especially where other remedies are available:

In considering an employer’s alleged bad faith conduct in the course of litigation, care must be taken not to conflate the analysis of punitive damages and special costs. Generally speaking, reprehensible conduct of parties during the course of litigation should be addressed by way of an award of special costs, while punitive damages relate to an employer’s conduct at the time of termination: Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29 at paras. 66-69 [Marchen]. See also: Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA 177 at paras. 128-134.

[214]     However, an employer’s conduct in the course of litigation may be taken into account in an award of punitive damages where an employer’s bad faith conduct at the time of termination continues in an “unbroken course” throughout the legal proceeding: Kelly at para. 128…

The conditions for an award of punitive damages include that other remedies available to the plaintiff are insufficient to serve the objectives of deterrence, retribution, and denunciation. Marchen directs that, generally speaking, allegations of reprehensible conduct during the course of litigation should be addressed by way of an application for special costs rather than by way of an award of punitive damages.

[217]     I have awarded the plaintiff compensatory damages for the mental distress caused by the defendant’s breach of its duty of good faith in the manner of his dismissal. He has requested, and will have, a further opportunity to make submissions on an appropriate costs order. To the extent that the plaintiff alleges the defendant’s conduct in the course of the litigation is reprehensible and deserving of rebuke, he will have an opportunity to seek a remedy in costs. [Emphasis added] 

TAKEAWAYS

It is easy to be a Monday morning quarterback and second guess litigation strategy without knowing the full details of what went into the decision to terminate for cause or pursue these matters through a full trial.  But here the court record and reasons show that such defense was clearly without merit given the lack of evidence, the fact that the Defendant’s own witness gave evidence against it, the fact that documentary evidence supported the Plaintiff’s claim and the fact that some allegations were clearly advanced on pure speculation without any evidence.

It is important to carefully examine the evidence of cause at the time of termination and the content of the termination letter.  It is also important to review the merits of such a claim and where appropriate pursue settlement.  And that often means counsel have to have a serious “Come to Jesus” meeting with the owner before proceeding.

November 5th 2020

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BY: CHRIS DRINOVZ

On November 7, 2020 the BC Provincial Health Officer announced a new public order to significantly reduce the level of social interactions and travel in the Vancouver Coastal and Fraser Health regions for two weeks up to November 23, 2020 at 12:00pm.

Businesses, employers and workplaces need to:

• Review their COVID-19 Safety Plans
• Conduct daily active screening for all workers on site between November 7 and November 23 using the COVID-19 Symptom Checklist. You can access our example Screening Form that our Employment & Labour Group has put together below and adapt it to your business and workplace as necessary.
• Ensure all customers and workers maintain a safe physical distance and wear a mask when appropriate to do so.
• Workplaces must be especially vigilant in shared settings like break rooms and kitchens.

Active inspections will increase, and businesses are encouraged to support working from home, where possible.

Travel: from November 7, 2020 at 10:00 pm travel into and out of the Lower Mainland and the Fraser Valley should be limited to essential travel only.

An ongoing Order was also issued on Gathering and Events on November 10, 2020 available here.

COVID-19 SYMPTOM CHECKLIST FOR THE WORKPLACE

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

As the now infamous “CERB” comes to an end, the federal government has created three new temporary benefits aimed at supporting Canadians still unable to work or working less because of the COVID-19 pandemic. Bill C-4, the COVID-19 Response Measures Act received Royal Assent on October 2, 2020 and  introduces three new benefits: the Canada Recovery Benefit (CRB), the Canada Recovery Sickness Benefit (CRSB), and the Canada Recovery Caregiving Benefit (CRCB).

For those employers who thought things would be getting simpler, this is unfortunately not the case. Each of the three “CR” benefits are summarized below. It would benefit employers to be generally familiar with each of the benefits to be in a position to field questions from employees and assist them in understanding their rights. It is also important to recognize the integration between these new federal benefits and the provincial COVID-19 leave.

Canada Recovery Benefit (CRB)

This is basically CERB for the self-employed. It provides $500 per week for up to 26 weeks, for workers who are self-employed or are not eligible for Employment Insurance (EI) and who still require income support. A person is eligible for the CRB between September 27, 2020 and September 25, 2021 if that person:

• Was present in Canada for the period in which they were unable to work;
• Has a valid Social Insurance Number (SIN) and is at least 15 years old;
• Was not working for reasons related to COVID-19 or had a 50% reduction in  average weekly income compared to the previous year due to COVID-19;
• Did not apply for or receive any of the following: CRSB, CRCB, short term disability benefits, workers’ compensation benefits, or EI benefits;
• Was not eligible for EI benefits;
• Earned at least $5,000 in 2019, 2020, or in the 12 months before the date they apply from any of the following sources:

– employment income (total or gross pay)

– net self-employment income (after deducting expenses)

– maternity and parental benefits from EI or similar QPIP benefits

• Has not quit their job or reduced hours voluntarily on or after September 27, 2020, unless it was reasonable to do so (Query: what does “reasonable” mean?)
• Was seeking work during the period, either as an employee or in self-employment, and has not turned down reasonable work during the 2-week period you’re applying for (Query: how would this be enforced?)

**Note: an individual who has an income exceeding $38,000 for 2020 or 2021 will be required to repay an amount equal to 50 cents per dollar of income earned in that year above $38,000 up to the total amount of the CRB received in the given year.

Canada Recovery Sickness Benefit (CRSB)

This rather extraordinary benefit was born from the deal struck between the Liberals and the NDP to avoid an early election and essentially provides workers with 10 days of government-paid sick leave. The CRSB is a benefit of $500 ($450 after taxes) per week for up to a total of two weeks between September 27, 2020 and September 25, 2021 for workers who are unable to work because they are sick or must self-isolate for reasons related to COVID-19. A person will be eligible for the CRSB if that person:

• Is unable to work at least 50% of their scheduled work week because they are self-isolating because they:

– Are sick with COVID-19 or may have COVID-19;

– Have been advised to self-isolate due to COVID-19; or

– Have an underlying health condition that puts them at greater risk of getting COVID-19.

• Did not apply for or receive any of the following for the same period: CRB, CRCB, short term disability benefits, workers’ compensation benefits, EI benefits;
• Reside in Canada, were present in Canada, have a valid SIN and are at least 15 years old;
• Earned at least $5,000 in 2019, 2020, or in the 12 months before the date of application from any of the following sources:

– employment income (total or gross pay);

– net self-employment income (after deducting expenses); or

– maternity and parental benefits from EI or similar QPIP benefits;

• Are not receiving paid leave from the employer for the same period;
• **Note: Workers will not be required to have a medical certificate to qualify for the benefit. Also, they may not claim the CRSB and receive other paid sick leave for the same benefit period i.e. no double-dipping.

The CRSB is not without criticism from the business community as some are of the opinion this benefit will be highly damaging to Canada’s economy (due to the $40 billion cost) but more importantly, to workplace productivity. This is because unexpected absences from the workplace have a larger impact than planned absences such as holidays: if a replacement cannot be arranged for, work does not get done, customers are left without service or with substandard service.  In a recent article in the Financial Post, employment lawyer Howard Levitt cynically wrote:

Having negotiated many union agreements, there is one truism: when you allow for 10 “sick” days a year, all or virtually all employees miraculously are suddenly “sick” ten times a year. In the minds of the employees, the ten days become floating holidays, permitting them to call in “sick” ten times a year at a time of their, not their employer’s, convenience. You will see a particular surge of “illnesses” around weekends.

Canada Recovery Caregiving Benefit (CRCB)

The CRCB provides $500 per week for up to 26 weeks per household, for eligible Canadians unable to work because they must care for a child under the age of 12 or family member because schools, daycares or care facilities are closed due to COVID-19 or because the child or family member is sick and/or required to quarantine. A resident of Canada will be eligible for the CRCB benefit if that person:

• Is unable to work at least 50% of the scheduled work week because they are caring for a family member;
• Did not apply for or receive any of the following for the same period: CRB, CRSB, short term disability benefits, workers’ compensation benefits, EI benefits;
• Is not receiving paid leave from your employer for the same period;
• Is caring for their child under 12 years old or a family member who needs supervised care because they are at home for one of the following reasons:

– Their school, daycare, day program, or care facility is closed or unavailable to them due to COVID-19;

– Their regular care services are unavailable due to COVID-19;

– The person under the applicant’s care is:

* sick with COVID-19 or has symptoms of COVID-19;

* at risk of serious health complications if they get COVID-19, as advised by a medical professional; or

* self-isolating due to COVID-19;

• Earned at least $5,000 in 2019, 2020, or in the 12 months before the date of application from any of the following sources:

– employment income (total or gross pay)

– net self-employment income (after deducting expenses)

– maternity and parental benefits from EI or similar QPIP benefits

• Is the only person in your household applying for the benefit for the week.

An individual will only be eligible to receive one benefit in any given period.

You can review further details of Bill C-4 here.

Should you have any questions about these new federal benefits, please contact one of the lawyers in the KSW Employment & Labour Group.

BY: CHRIS DRINOVZ

The next BC Provincial General Election will take place on Saturday, October 24, 2020 (“General Voting Day”). 

Under the s 74 of the B.C. Election Act, employers have an obligation to provide voters with four consecutive hours free from work during advance voting or on General Voting Day. We are publishing this article to help employers understand the scope of these obligations.

RIGHT TO TIME OFF

Voters are entitled to four consecutive hours free from work to vote during advance voting or on General Voting Day. Voting hours during advance voting are 8 a.m. to 8 p.m. local time and on General Voting Day are 8 a.m. to 8 p.m. Pacific time.

This does not necessarily mean four hours off work. It means that there must be a four-hour period free from work during voting hours. Time off may be at the beginning or end of an employee’s shift, or unnecessary if normal working hours already provide enough time free from work to vote.

For example, if a shift ends at 4 p.m., or does not begin until noon, the employee is not entitled to any time off for voting purposes. Employers can decide when their employees can take time off to vote.

We encourage Employers to discuss with their employees in advance how they can exercise their right to vote to ensure that the requirements of the Election Act are met.

It is an offence if an employer deducts pay or penalizes employees for taking time off to vote. Employees are entitled to their regular compensation for any hours not worked during this time.

EXCEPTIONS

There are exceptions to the general rules outlined above. For example, if a voter is in such a remote location that they would not be able to reach any voting place during voting hours, they are not entitled to any time off for voting.

PENALTIES FOR FAILURE TO COMPLY

Failure to comply with section 74 of the Election Act is an offence and, upon conviction, an employer may be liable to a fine of not more than $10,000 or imprisonment for a term not longer than one year, or both.

UNIONIZED WORKPLACES

If you are a unionized employer, check your Collective Agreement as it may have specific provisions applicable to your workplace, on top of your obligations to employees under the Election Act.

Check out our Related Articles here.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

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