When terminating an employee in BC and Canada, it is important to remember that the concept of “at-will” employment does not exist. The law surrounding the termination of employees involves far greater consideration and obligation on the part of the employer than in jurisdictions that subscribe to “at-will” employment. Each situation will turn on its own set of facts.

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The Requirement to Provide Notice

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Unless a non-unionized employee acts in a manner that would constitute “just cause” for termination (which is a narrow category of behaviour), or the employment relationship expires at the end of a fixed term, the employer is obligated to provide the employee with either:

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• Advance notice of termination.
• Compensation in lieu of that notice.

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The employer's obligation to provide the employee with reasonable notice of termination does not apply where:

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• The employee resigns their employment
• The employment relationship is frustrated
• There is just cause for termination of employment
• The employment contract contains a valid term providing for the amount of notice to be given in the event of termination
• The employment contract is for a fixed term

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As it is often practically undesirable to have an employee continue to work after receiving notice of termination, paying out the notice period is the more frequent choice.

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The notice of termination provided to the employee must be specific and unequivocal. Moreover, it must be clearly communicated to the employee.

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In BC, there are three types of potential notice that the employer must give the employee at the time of termination of employment:

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• Statutory minimum termination notice or pay in lieu of notice.
• Common law reasonable notice.

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Alternatively, the parties may contract for a set period of notice, provided that period is not less than the statutory minimum requirements. Employers cannot contract out of the statutory minimum requirements.

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Both unionized and non-unionized employees are potentially entitled to the minimum statutory notice and severance pay. Common law reasonable notice is potentially available to non-unionized employees, but not to unionized employees who have their employment governed by a collective agreement.

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Statutory termination notice – BC Employment Standards Act

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There is a statutory minimum period of termination notice that must be given according to length of employment, outlined in the BC Employment Standards Act. Where groups of employees are terminated with a short period of time, mass or group termination notice periods may apply. The minimum standards legislation applicable to the employee must be consulted before structuring a termination package.

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Common law reasonable notice

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The notice periods that have been held to be reasonable at common law have traditionally been much longer than the minimum standards termination notice period, sometimes greater than 24 months of notice. Unless the employment contract limits the notice period to the statutory minimum, or to another amount that is greater than the statutory minimum, the employer must provide compensation for the common law notice period.

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In determining “reasonable notice” under the common law, the Courts will consider such factors as:

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• The length of service.
• The age of employee.
• The character of the position, including the degree of responsibility and the employee’s level of training and education.
• The availability of similar employment, having regard to the experience, training and qualifications of the employee.

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The employer has the choice of asking the employee to work through the notice period, or to pay compensation in lieu of such notice. If pay in lieu of notice is given, the employer is to pay the compensation to which the employee would be entitled as though the employee had worked through the notice period. The employer may also be required to continue medical and dental benefits to the employee for the duration of the notice period and pay for unused vacation time.

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Contractual notice

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An employer can control some of the uncertainties that might arise at the time of termination of an employee by clearly setting parameters in the original employment contract. While the employer cannot contract out of statutory minimums (such as minimum notice periods that must be provided on termination), contracts can be used to limit or exclude the common law concepts that would otherwise apply. For example:

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• A contract can specify that certain acts will constitute just cause or willful misconduct, effectively broadening the common law definitions of these concepts.
• A contract may also set out what period of notice will be given, how payment on termination will be structured and how various types of incentive compensation will be dealt with on termination.

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Unless the employee’s duty to mitigate is outlined in the termination provisions of the employment contract, mitigation will not apply to the termination provision amounts.

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

We communicate Employer updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

For those with children, moving after a separation or divorce is not as simple as it may sound. Even if you think your matter has resolved and you have an order or agreement outlining the parenting time you and the other parent have with your children, the Family Law Act and the Divorce Act create extra restrictions around moves, also known as “relocations,” that can limit your movement without first obtaining the consent of the other parent or the court.

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Relocation is one of the more complex and challenging matters to address in a family law action. The Family Law Act and the Divorce Act both address the limitations and requirements around proposed relocations, and while these Acts are similar in nature, their requirements are slightly different from one another. If you are not sure which act applies to your situation, make sure to consult with a lawyer first before taking steps to relocate.

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This article will only summarize relocation requirements under the Family Law Act. Each individual case is fact specific in these matters and they can quickly become complicated. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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What is the difference between a move versus a “relocation” pursuant to the FLA?

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Under the Family Law Act, in situations where you do not already have an agreement or court order that addresses parenting arrangements, a move that can reasonably be expected to have a significant impact on that child’s relationship with another guardian is considered a “change in residence”.

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Similarly, in cases where there is an existing agreement or court order about parenting arrangements, a “relocation” is also defined to mean that a change in the location of the child’s residence, or the residence of that child’s guardian, that can be reasonably expected to have a significant impact on that child’s relationship with a guardian or someone else that has a significant role in their life.

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What this means is, any move that will significantly impact the child’s relationship with their guardian or important person in their life, is a “relocation.” This also means that if you are the guardian to a child and you are seeking to move without the child, and that move would impact the child’s relationship with you to a significant extent, that is also considered a “relocation” and that decision comes with statutory obligations to address prior to moving.

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What is required of the parent wishing to move – either with or without the child?

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If there is no agreement or order already in place, then the guardian wishing to change the child’s address will need bring an application pursuant to section 45 of the Family Law Act to address parenting time accordingly.

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If there is an agreement or order that addresses parenting arrangements, then the guardian looking to relocate, either with or without the child, must give 60 days advance written notice to all other guardians and persons that have contact with the child, that specifies the date of the relocation, and the name of the proposed location.

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What if I don’t agree to a guardian relocating with the child?

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Object! Object! Object!

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Ideally, you will have done your best to communicate with the other guardian and persons having contact with the child to cooperate and resolve the issue of the proposed relocation with creative solutions – however, this is not always possible.

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The reality is, if you are not confident an agreement can be reached to resolve the issue, you only have 30 days to file an application for an order to prohibit the relocation. This is the only way to formalize your objection and it must be done quickly.

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Otherwise, if you do not file the application objecting to the relocation within 30 days, section 68 of the Family Law Act permits the relocation to occur on or after the date that was set out in the notice.

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Notice of relocation was given and an application for an order to prohibit the relocation was filed – now what?

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This is where things can get a little complicated. The test for the court to determine whether the relocation should be granted first depends on the current parenting time allotment. This means, it depends on whether or not the parties have substantially equal parenting time.

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Ultimately, in applications by a guardian seeking to prohibit the relocation, there are three aspects the court will consider in its analysis:

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1. Is the proposed relocation is made in good faith;
2. Is there a reasonable and workable arrangement to preserve the relationship between the child and none relocating guardian; and
3. Is the relocation in the best interests of the child pursuant to section 37 of the Family Law Act.

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The responsibility of which parent has to prove those things depends on who has the majority of parenting time or if the time is shared equally.

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What does it mean for a proposed relocation to be made in good faith?

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When the court is asked to determine whether a proposed relocation has been made in good faith by the guardian seeking to relocate, the court must consider all relevant factors, including but not limited to the following:

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1. The reasons for the proposed relocation;
2. Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
3. Whether notice was given under section 66 of the Family Law Act;
4. Any restrictions on relocation contained in a written agreement or an order.

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As you can see, considering a relocation, particularly with your child, can quickly become a complicated matter. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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We have noticed recently that employment lawyers and immigration lawyers, often come across cases where a business or employee is faced with a lawsuit and their first reaction is "But I followed my immigration consultant's or hr consultant's advice!" When asked why they chose to use the services of a consultant rather than a lawyer, they often indicate that the main reason was that a consultant would be cheaper than a lawyer. Often, this is an untrue assumption; some consultants will charge their clients $50,000 for a single immigration matter or over $80,000 for providing employment contracts and templates (which may or may not in fact even be enforceable).

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Of course, there are many very cost-effective (and competent) consultants out there. However, there are also many cases where a consultant is in fact more expensive and less reliable/effective than a lawyer. This is due in part to the fact that as lawyers, we are governed by our provincial law society and owe a duty of loyalty and honesty to our clients. We are also obligated to address any conflicts of interest and cannot, for example, give conflicting advice to both sides.

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My suggestion would be to at least consider speaking to a lawyer before engaging a consultant. A good lawyer will be able to give you a realistic estimate of their fees (at least, to the extent possible) and outline the process/steps that are needed during the course of an initial consultation.

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Generative Artificial Intelligence (Generative AI) has revolutionized the way we perceive AI's capabilities. By leveraging large quantities of data and advanced algorithms, Generative AI, such as OpenAI's ChatGPT, has gained significant attention for its ability to create human-like content in various forms such as text, images, audio, and synthetic data. OpenAI's ChatGPT is a prime example of Generative AI, a highly advanced Chatbot introduced to the public in November 2022. Its exceptional ability to mimic human speech has significantly influenced perceptions of Generative AI and its potential applications. With its rapid adoption and diverse applications, employers face crucial decisions regarding the integration of Generative AI into their workplaces. This article explores the key issues employers need to consider when implementing AI and in the workplace.

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The Paradigm Shift - Replacing Human Effort

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Generative AI offers a tantalizing prospect for employers by providing a cost-effective and efficient alternative to certain job tasks traditionally performed by employees, vendors, and consultants. This technology offers the promise of enhanced organizational productivity, reducing both time and costs while maintaining or surpassing quality standards. However, as employers contemplate the replacement of human workers with AI systems, they must navigate a myriad of legal implications, especially in relation to job security and working conditions.

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Depending on the industry and specific job roles, Generative AI may be employed to partially or entirely replace employees' responsibilities. In such cases, legal implications arise concerning job security and working conditions, which differ for unionized and non-unionized employees.

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Non-Unionized Employees - Treading Carefully

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If an employer decides to entirely replace employees with Generative AI, standard considerations related to termination will apply.

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Replaced employees must receive their appropriate statutory, contractual, or common law entitlements. It is crucial for employers to make termination decisions in good faith, avoiding arbitrariness or discrimination. Particular care should be taken to prevent age-based discrimination, as assumptions about older employees' ability to adapt to Generative AI could be detrimental.

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Employers must also be cautious of potential claims of constructive dismissal if the adoption of Generative AI significantly alters or reduces an employee's job duties. Proactively addressing this risk involves including explicit language in employment contracts that reserves the right to change duties and responsibilities, while limiting the magnitude of such changes through measures like providing advance notice or obtaining employee consent.

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Additionally, the inclusion of provisions that maintain the contract's applicability despite changes to position, responsibilities, salary, or benefits can help avoid challenges based on the "changed substratum" doctrine, which invalidates contractual provisions when an employee's job substantially changes.

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Unionized Employees – Navigating Collective Agreements

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In the case of unionized employees, the doctrine of constructive dismissal does not typically apply. Consequently, unionized employers may exercise their management rights to modify bargaining unit employees' duties, subject to the language of the collective agreement and relevant statutes. However, employers may face restrictions when it comes to using non-bargaining unit employees or external personnel specially trained in Generative AI to perform tasks traditionally handled by bargaining unit employees. Such actions may be deemed outsourcing or contracting out, prohibited by collective bargaining agreements. Additionally, collective agreements often contain provisions requiring employers to consult with unions and provide notice before implementing technological changes that affect working conditions or employment security. Similar obligations may be imposed by labor statutes in some jurisdictions, even without collective agreement language. Compliance with these requirements depends on factors such as the definition of technological change, the impact of Generative AI on individual employees' conditions and security, and the employer's motivations for implementing the technology.

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Data Privacy, Intellectual Property, and Confidentiality Considerations

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While still in its early stages, Generative AI has already triggered privacy concerns, leading to investigations by privacy commissioners. Employers must tread carefully to safeguard confidential and sensitive information from inadvertent disclosures through Generative AI outputs. Robust privacy impact assessments and algorithmic impact assessments should be undertaken to address these concerns effectively.

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On the other side of the spectrum, employers must be cautious not to infringe upon individuals' privacy rights or intellectual property when utilizing Generative AI-generated content. Collaborating with Generative AI developers and incorporating privacy-compliant practices is crucial to mitigate these risks.

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Navigating Humam Rights and Biased Outputs

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Generative AI's outputs may unwittingly perpetuate biases present in the training data, leading to potentially discriminatory outcomes. Employers must be vigilant, especially when using Generative AI for customer service, marketing, or employee performance evaluations. Employers can minimize liability by reviewing public-facing outputs and avoiding high-stakes decision-making tasks unless the AI's decision-making process is transparent and defensible.

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Workplace Investigations - Guarding Against Deepfake Threats

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Generative AI's capacity to create deepfake content raises concerns for workplace investigators. Employers must equip their investigators with training to detect and mitigate potential deepfake misuse during workplace investigations.

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Cybersecurity Risks

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Generative AI can be exploited by threat actors, leading to cybersecurity-related risks for organizations. Phishing attacks, malware creation, and social engineering attacks using deepfake technology are significant concerns. Employers should implement policies, protocols, and employee training programs to verify identities, enhance cybersecurity controls, and mitigate these risks.

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Conclusion

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Generative AI presents a new frontier for employers, revolutionizing workplaces while introducing complex challenges. By proactively addressing data privacy, intellectual property, confidentiality, human rights, workplace investigations, and cybersecurity concerns, employers can harness the potential of Generative AI while mitigating associated risks. Staying abreast of evolving regulations, adopting best practices, and prioritizing transparency and security will enable employers to navigate this transformative technology with confidence.

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

A frequent question that we deal with from employers in BC is "what is just cause to terminate an employee?" On a basic level, just cause means that the employer has a valid and serious reason to end the employment relationship without notice or pay in lieu of notice.

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In this update, we will review five recent BC employment law decisions where the employers were successful in defending against claims on the basis of just cause. Specifically, the cases involved employees who were terminated for just cause as a result of:

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1. False business expense claims, dishonesty and misconduct;

2. Secret recordings of workplace conversations; and

3. Time theft & side hustle during business hours.

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Termination for False Business Expenses

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In Mechalchuk v Galaxy Motors (1990) Ltd., 2023 BCSC 635, the employee was the president of a car dealership who was terminated as a result of submitting false business expense claims and then being dishonest when confronted about those expenses.

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In this case, the amount of the expenses falsely claimed was low (approximately $250) but the court held that there was just cause as a result of:

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1. The fact that the employee was the most senior employee of the company, and held a position of trust; and

2. The fact that the employee hid his dishonesty from the company and failed to come clean when confronted about the expenses by the CFO.

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Another example of a very recent decision issued on June 16, 2023, dealing with termination for just cause and misconduct is Chura v. Batten Industries Inc., 2023 BCSC 1040.

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Here, the employee was fired after engaging in various forms of dishonest conduct, such as making false expense claims, benefiting personally from trading company products, and misusing corporate accounts. The most significant allegation in this case was that the employee entered into a contract with a website company, without disclosing a conflict of interest, resulting in a kickback to her husband.

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The Court found the employer had just cause to dismiss her, dismissed her claim for damages against the employer, and held:

Taken together, however, the various forms of misconduct in which Ms. Chura engaged leave no doubt that she engaged in a long-standing pattern of dishonest and deceptive behaviour that meant that the employment relationship could no longer viably exist. Simply put, it would be impossible for Mr. Roberts to ever again trust Ms. Chura.

[319]    For these reasons, I dismiss Ms. Chura’s action for wrongful dismissal in its entirety. As a result, I need not consider her damage claims.

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Secret Workplace Recordings = Just Cause

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Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112 was a case involving an employee who worked for the company for over 10 years and was a certified professional accountant (CPA) at the time of his dismissal.

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Although the employer initially dismissed him without cause, it asserted after-acquired cause after discovering that the employee had been secretly recording conversations with his colleagues. In this case, the fact that there were over 135 recordings made by this employee over the course of several years likely played a significant role in the court's decision. Similarly, the court's decision likely hinged in part on the fact that: 1) the employee was a CPA, 2) acted contrary to the Employer's code of conduct, and 3) recorded private conversations with his coworkers despite subsequently acknowledging that he knew that this would make his coworkers uncomfortable.

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The takeaway, in other words, is that secret recordings by an employee, even discovered after the fact, can be just cause for dismissal. However, whether this will in fact be successful will depend on multiple factors including the volume, contents, and purpose of the recordings.

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Time Theft = Just Cause AND Compensation to the Employer?

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In Besse v. Reach CPA Inc, 2023 BCCRT 27, the Civil Resolution Tribunal found that the employee committed time theft and, notably, ordered that the employee pay damages to their employer for that time theft.

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In our view, this is likely an outlier case, as this is one of the first instances that we are aware of in which an employer was awarded damages for time theft (vs. simply being found to have just cause for the termination). Furthermore, as a Civil Resolution Tribunal decision (vs. a BC Supreme Court decision), this decision will not be binding on any of our courts, who may choose to simply ignore the decision.

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In this case, factors that likely assisted the employer significantly in the outcome were:

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1. The employee signed an employment agreement allowing her to work remotely; and

2. The employer in that case was able to prove the exact number of hours that the employee did and did not work, based on a time-tracking software that it had installed (Note: there are important legal and privacy considerations that should be discussed with us prior to implementing such software).

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Moonlighting During Business Hours

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In the recent wrongful dismissal case Dove v Destiny Media Technologies Inc., 2023 BCSC 1032, the boundaries of employees engaging in "side-hustles" during work hours came under scrutiny. The case involved an employee, Ms. Dove, who was terminated for engaging in moonlighting activities during business hours.

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Ms. Dove had a diverse work history in the food industry before joining Destiny Software Productions ("Destiny"), a technology company. During her employment, the she became involved in unpaid work for a café and general store owned by Destiny's CEO and another partner. Conflicting representations emerged regarding her status at the business, but she was referred to as an "owner" in various correspondences. Ms. Dove increasingly devoted time during work hours to tasks related to the side business, leading to concerns about her absenteeism and inability to fulfill important work obligations. She was eventually dismissed from her position at Destiny.

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The court ruled that Destiny had just cause for termination based on a combination of factors, including the volume of evidence showing significant side business work during company hours without approval, the broad reach of the side business work, its impact on Ms. Dove's ability to fulfill her duties at Destiny, and her neglect of a requested business plan she failed to deliver.

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The court emphasized that employees have a duty to provide full-time service to their employer, unless otherwise agreed upon. The ruling concluded that Destiny had just cause for termination and would not award Ms. Dove wrongful dismissal damages.

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In Summary:

This case highlighted the importance of employees' commitment to their employers during work hours and the potential consequences of unauthorized moonlighting. The court decision reaffirmed employers' rights to dismiss employees who engage in outside business activities without proper permission. It serves as a reminder for both employers and employees to understand and adhere to their contractual obligations and ethical responsibilities within the workplace.

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Conclusion

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Despite these cases, it is essential to remember that just cause remains difficult to establish and depends on the facts and circumstances of each case.

Therefore, we highly recommend seeking legal advice before deciding to terminate an employee for just cause, as we will be more likely to be able to assist in assessing and building a strong case for a just cause termination, if appropriate.

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Insights

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1. Dishonesty can be grounds for a just cause termination, especially for senior employees. Even an isolated incident of dishonesty can amount to just cause if it is sufficiently serious and damages the employment relationship beyond repair, especially if the employee fails to show remorse.
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2. Secret recordings of an employee's coworkers (at least, without very good reason) can support a finding of just cause.
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3. Time theft can not only form the basis for just cause, but, in extreme cases, it can even form the basis for a successful counterclaim against the employee. Engaging in unauthorized business activities during work hours can lead to dismissal.

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

In B.C., where necessary factors exist, one can generally seek remedies for harassment with the B.C. Human Rights Tribunal or WorkSafeBC. However, there is no common law tort of harassment in either British Columbia or Canada (see for example, Stein v. Waddell, 2020 BCSC 253 at paras. 30–35; Gaucher v. British Columbia Institute of Technology, 2021 BCSC 289; and Merrifield v. Canada (Attorney General), 2019 ONCA 205). This long-held position of the Canadian courts was recently changed when Justice Colin Feasby of the Alberta Court of King’s Bench established a new tort of harassment in that province in Alberta Health Services v Johnston, 2023 ABKB 209 (“Johnston”).

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Johnston Background

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In Johnston, Mr. Johnston who was a candidate for mayor of Calgary in 2021 spewed misinformation, conspiracy theories, and hate, targeting Alberta Health Services (“AHS”) and Sarah Nunn, who was employed by AHS as a public health inspector. Mr. Johnson’s engaged in persistent harassment of those who acted in the course of their duties enforcing public health orders during the COVID-19 pandemic. Mr. Johnston identified Ms. Nunn by name and shared pictures of her and her family that he obtained from her publicly accessible social media accounts, making derogatory comments about them.

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Tort of Harassment

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Having considered the facts and relevant authorities, Justice Feasby established the tort of harassment as follows:

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                [107] Based on the foregoing, I define the tort of harassment as follows.  A defendant has committed the tort of harassment where he has:

                    (1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in    person or through or other means;

                    (2) that he knew or ought to have known was unwelcome;

                    (3) which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety    or the safety of her loved ones, or could foreseeably                                 cause emotional distress; and

                    (4) caused harm.

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The Court in Johnston found Mr. Johnston to have met the test for the tort of harassment, and awarded $100,000 in general damages against him for the breach of the tort, as well as general damages for defamation in the amount of $300,000 and aggravated damages of $250,000.

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Takeaway

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While it remains to be seen how the B.C. courts will respond to this new tort of harassment, employers should be aware of this new tort and the potential risk it presents. Where employees engage in harassment, employers could be held vicariously liable. In view of this newly established tort, in addition to the statutorily imposed legal obligations to discourage and prohibit harassing conduct, employers should consider policies to control harassment in the workplace.

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

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It is a rare occurrence that employers sue their current or former employees.   We see it more often in cases where employers are suing to enforce or seek damages because an employee has stolen confidential information or has violated a non solicitation or non competition clause:  see for example Quick Pass Mater Tutorial School Ltd v Zhao 2018 BCSC 683; 2022 BCSC 846.

So I read with interest a recent action brought by an employer against its long serving Payroll Supervisor for $1,923,290 that the supervisor had stolen from 2015 to 2021 (yes you read that right).

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B.A. Blacktop Ltd. and Eurovia BC Inc. v Fazio, 2023 BCSC 892

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In this case the employee F resigned on August 5th 2021.  Shortly after her departure the employer commenced an internal investigation that led to the discovery that F had been using her knowledge of their computerized system to systematically defraud B A Blacktop of almost $2 million.  It is not clear what caused the employer to conduct the review.

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The employer filed a NOCC starting an action against F and immediately got a Mareva injunction freezing F’s assets.  F was self represented and filed a Response to the NOCC but basically ignored the substance of the action for fraud and instead made allegations of a toxic workplace and various forms of mistreatment by the employer.

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The court had little trouble in entering judgment against F.  The employer led evidence that included a detailed forensic audit report that identified 885 unauthorized payments in excess of $1.9 million that were deposited into 19 separate bank accounts that she held in 4 separate financial institutions.

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The forensic audit report identified the modus operandi of the fraud:

      Briefly, Mr. Williams identified Ms. Fazio's modus operandi as follows:

1. First, she would secretly select current and past employees of the plaintiffs at random and change the payroll direct deposit bank account information from the employees’ bank accounts to bank accounts owned and controlled by her;
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2. Second, she would create fictitious payment proposals that induced the plaintiffs’ computer payroll system to pay unauthorized employee wages that were not owing directly to her own bank accounts;
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3. Third, she would create payment instruction text files based on the payment proposals and upload them to the plaintiffs’ online banking platform, which automatically instructed the plaintiffs’ banks to make the unauthorized payments to one of her 19 bank accounts; and
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4. Finally, she would in many cases reverse the bank account information in the employee master file back to the original and correct bank account for that employee after the unauthorized payment had been made.

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The court awarded judgment for $1,923,820.74, interest, $100,000 punitive damages and special cost. The latter two awards are rarely made and only in the most egregious circumstances.

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So the good news for the employer is that it obtained judgment for the stolen money.  The bad news for the employer is that it appears from the judgment that it might have real trouble collecting:

During submissions, Ms. Fazio effectively admitted the fraud. She says she developed a gambling addiction and gambled all of the money away to an online gambling portal. She says she is now without assets or income and in poor health.

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What Should Employers Do?

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Employers face numerous financial challenges in this post COVID world.  Everything from cyber security attacks and ransom demands to spiraling costs of doing business.

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So just as employers take steps to try to avoid or diminish the damage of cyber attacks and ransom demands or protect its petty cash, so too should employers monitor the financial matters and not simply trust the employees who hold important positions of trust especially those responsible for the financial aspects of the business. Here are some suggestions.

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1. First and foremost, employers need to be careful when hiring such senior employees.  This is now more difficult given the employee shortage.  BUT cutting corners on the hiring process can be very costly:  Check out our previous article on the Art of Hiring.  Background checks etc will sometimes reveal problems.
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2. Consider the methods used by F as noted above that went undetected.  Was there any hint of impropriety?  E.g. did she fly to Vegas every weekend?  Did she show an unusually high standard of living?  Were there rumours?
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3. Have your accountants and auditors provide a security protocol that might detect the problem earlier.  And don’t feel bad about checking someone who you feel is a trusted employee—if they are a trusted employee they will understand the need for financial security measures.
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4. Implement regular reviews of employees’ computers.  It is important to ensure that you have the right to access employees’ computers and cell phones to ensure their privacy rights are protected but so are your business interest.

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Mike Weiler & Chris Drinovz

May 31, 2023

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

On March 7, 2023, the BC government introduced Bill 13, the Pay Transparency Act. It came into effect on May 11, 2023. The purpose of the Act is to identify and eliminate wage gaps persisting for women and other equity groups. Section 2 of the Act comes into effect on November 1, 2023, requiring all employers in B.C. to include the expected pay or the expected pay range for a specific job opportunity that they advertise publicly.

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Key Features

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We will review each section below, but want to start with a quick overview of the key features of note:

• Requires employers to specify the expected “salary or wage” in all advertised job postings – effective November 1, 2023
• Prohibits employers from asking job applicants how much they previously or currently make
• Prohibits retaliation against employees for: asking about their pay; disclosing information about their pay to other employees; or asking employers to comply
• Require employers to prepare annual pay transparency reports. Employers with publicly accessible websites must post their reports online.
• Reports must include data re: Indigenous women, women of colour, immigrant women, women with disabilities and non-binary people
• Reporting obligations phased in between November 2023 and November 2026 depending on size of employer - the largest private employers (over 1000 employees) will start in November 2024, over 300 employees in 2025 and over 50 employees in 2026
• Exception for employers with less than 50 employees
• Bill 13 does not create recourse mechanisms where gender pay gaps are identified --> individual’s primary recourse is filing wage discrimination complaint with Human Rights Tribunal

The BC province also provided additional guidance on wage or salary information to be posted, in October, 2023, summarized below:

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• Employers are not obligated to include bonus pay, overtime pay, tips, or benefits on job postings, although they can choose to do so voluntarily.
• Job postings must include the expected wage or salary, which can be presented as a single figure (e.g., "$20 per hour") or as a range (e.g., "$20-$30 per hour" or "$40,000 - $60,000 per year").
• When presenting a wage or salary range, it must not have unspecified minimum or maximum amounts (e.g., "up to $30 per hour" is not acceptable, but "20-$30 per hour" is).
• There is currently no specified limit on how broad or narrow the wage or salary range can be, and this is at the discretion of the employer.
• The wage or salary information should represent the employer's reasonable expectation of pay for the job at the time of posting.
• Applicants can request a higher wage or salary than advertised, and employers can agree to pay more than the amount advertised.
• The requirement applies not only to jobs directly posted by employers but also to positions posted by third parties on various job search websites, job boards, and other recruitment platforms.
• This requirement extends to jobs advertised in other jurisdictions if they are open to B.C. residents or may be filled by someone living in B.C., regardless of whether the work is in-person or remote.
• General "help wanted" posters and broad recruitment campaigns that do not specify job opportunities are exempt from this requirement.
• If a job is not publicly posted, there is no obligation to include pay information.

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Review of the Act

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Pay History

The Act prohibits employers from asking job applicants how much they previously or currently make, unless the pay history information is publicly accessible.

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Non-Retaliation Provisions

The Act prohibits retaliation against employees for

• asking about their pay;
• disclosing information about their pay to other employees; or
• asking employers to comply.

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Job Postings

The Act requires employers to specify the expected “salary or wage” in all advertised job postings, effective November 1, 2023.

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Pay Transparency Reports

The Act requires employers with 50 or more employees to prepare annual pay transparency reports by November 1st of each year. These reports must include data on pay gaps for certain groups including:

• Indigenous women;
• women of colour;
• immigrant women;
• women with disabilities; and
• non-binary people.

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Employers with publicly accessible websites must post their reports online. Employers who do not have publicly accessible websites must make a copy of the report available to their employees in a conspicuous place in each of their workplaces and make a copy available to any member of the public who requests one.

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These obligations will be phased in between November 2023 and November 2026, depending on the size of the employer:

• As of November 1, 2023: B.C. government and the six largest Crown corporations, which are BC Hydro, BC Housing, BC Lottery Corp., BC Transit, ICBC, and Work Safe BC
• As of November 1, 2024: all employers with 1,000 employees or more
• As of November 1, 2025: all employers with 300 employees or more
• As of November 1, 2026: all employers with 50 employees or more

Summary of other details available in October 2023:

• Employers will need to create reports highlighting pay disparities for specific demographic groups
• An online reporting tool is now provided to assist employers in generating these reports: https://www2.gov.bc.ca/gov/content/gender-equity/preparing-pay-transparency-reports
• The exact content requirements for the reports were developed through collaboration with the BC Public Service Agency and the six largest Crown corporations - see mock report: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/services-policies-for-government/gender-equity/pay-transparency-report-mockup.pdf
• Employees must have the option to voluntarily update this information annually
• Employers will use the collected data to generate a Pay Transparency Report with the assistance of a tool introduced by the Ministry
• The Ministry will involve employer groups and payroll associations in the tool's development and share it with employers
• The pay gap will be reported as the difference in hourly wages, overtime, and bonuses between men, women, and non-binary individuals
• Employers may also need to report the percentage of each gender within quartiles, categorizing them as the top 25% of earners, high 25%, mid 25%, and lowest 25%
• Detailed wage data in terms of dollar amounts will not be part of the reporting requirements.

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Recourse Mechanisms

The Act does not create recourse mechanisms where gender pay gaps are identified. An individual’s primary recourse is filing a wage discrimination complaint at the BC Human Rights Tribunal.

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

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If you are an employer or an employee seeking advice on how the Act affects your employment relationship, the Employment and Labour Group at KSW Lawyers would be pleased to speak with you. Please contact us here or by phone at 604-507-6192.

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Waiver and release agreements are essential for businesses as it shields them from legal liabilities. These agreements, signed by individuals participating in activities or using services, waive their right to hold the business accountable for any resulting injuries or losses. Having such agreements drafted and reviewed by a lawyer ensures the agreement is customized, clear, and compliant with the province's laws, minimizing the risk of disputes. This professional review enhances enforceability, safeguards the business, and mitigates potential risks, reducing the chance of costly litigation and reputational harm.

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