Being denied long-term disability (LTD) benefits by your insurer can be a stressful experience. However, it can be even more challenging when employers use this decision to argue that you are capable of returning to work, despite you and/or your medical professionals' opinion. It's important to note that employees cannot be forced to work before they are medically able to do so. The decision of whether someone can return to work after an injury or illness is complex and involves considering both objective medical evidence (e.g., MRI results) and subjective evidence (e.g., pain or mental health issues).

‍

The question of whether someone is "totally disabled" under their LTD insurance policy also varies depending on their job duties and the wording of their policy. Even if someone is denied LTD benefits because they are not "totally disabled," they may still be suffering from a "disability" as defined by the BC Human Rights Code and be entitled to "reasonable accommodation" from their employer, which involves its own complex legal analysis.  

‍

If you find yourself in this situation, it's crucial to speak with an experienced employment and disability lawyer to determine the best course of action. This may involve filing a human rights complaint, wrongful dismissal claim, or LTD benefits claim. Seeking advice before taking any steps is essential since certain actions (e.g., refusing to provide necessary medical information or returning to work prematurely) can significantly impact the outcome of your case.

‍

Canada has seen a resurgence in unionization, which is being led by younger generations prioritizing greater dignity and respect, workplace safety, and living wages. Unions have adapted to modern times by utilizing digital platforms to organize and communicate with employees. The recent BC Labour Relations Board 2022 Annual Report reveals interesting statistics about activity in our province, which we review in more detail below. Unions in BC have been particularly successful in the health care, social services, and construction industries.

‍

After the NDP introduced numerous changes to the Labour Relations “Code” in 2019 to favour unions and then eliminated the secret ballot vote by passing Bill 10 in 2022, many of us assumed that union certifications would sky rocket as it had done in 1992.  So it was with great interest that we awaited the Labour Relations Board (“LRB”) 2022 Annual Report to see if the number of certifications and applications to vary certifications had jumped. Surprisingly, the number of certifications granted in the last seven months of 2022 under Bill 10 is not as high as expected, which perhaps reflects the current economic reality of British Columbia, where non-union employers are increasing wages and benefits to attract workers - but we anticipate that will change.

‍

‍

Labour Relations Board 2022 Report

‍

On March 10 2023 the LRB issued its 2022 Annual Report.

The reporting system is unique and in order to fully understand the data one must actually read the Report.  However it discloses some interesting statistics:

‍

• There were 150 applications for certification for unorganized employers with 135 granted covering 4222 employees, and 20 dismissed covering 472 employees
• There were 20 applications for decertification with 17 granted covering 259 employees
• Not surprisingly the most certifications granted were in Health Care and Social Services followed by construction
• Almost 65% of applications granted were for employers with between 1—20 employees
• What is particularly troubling for employes is the fact that 50% of applications by unions for remedial  (i.e. automatic certification without regard to union support) under section 14(4.1) were granted.  Compare that to the previous 10 years where only 8 such applications out of 90 were granted.  This reflects the powerful amendments to section 14(4.1)

‍

What then is the scorecard for the success of Bill 10 in favour of unions?  In the 1st 5 months of 2022 (pre Bill 10) there were 58 applications for certification filed, and 43 granted.  In the last 7 months of 2022 under Bill 10 and absent a secret ballot vote, 114 applications were filed and 87 granted.

‍

Notwithstanding the number of applications and orders for certifications, the statistics are for me surprisingly low under Bill 10. My sense is that it reflects the economic reality of BC where the demand for labour is at the highest it has been  for a long time. This worker shortage has caused non union employers to increase wages and benefits in order to attract employees and ensuring they pay at or near union wages. Job security is not much of an issue today, therefore I believe it is harder in this current  environment for unions to organize—in many cases not much more they can offer employees especially since once unionized under a collective agreement all  employees will have to start paying unions dues that in some cases can exceed $100 per month. There is also the fact that the demographics of workers  and the nature of business has changed significantly from 1992. And of course the NDP has provided non union employees with significant benefits such as the 5 day paid sick leave that might otherwise have been negotiated by unions.

‍

But if the pundits are right we are heading into recessionary times when workers will become more concerned about job security.  As a result it may well be that the steps taken by the NDP under Bills 30 and 10 will bear fruit for unions in 2023.

‍

Are You Prepared?

‍

While Chris and I have been successful in advising clients to oppose union certifications despite Bill 10, the reality is if a union signs up more than 55% of employees in an appropriate bargaining unit there is very little the employer can do to defeat the application.  The issues at the certification hearing (held within 5 business days of the application) usually centre around whether the unit was appropriate and inclusions/exclusions.  Once certified a union has a significant control over the business and significant leverage in achieving a collective agreement.

‍

We continue to recommend taking steps to limit the potential of a union certification before they come knocking.  If an employer  is lucky enough to find out about a union organizing campaign before an application is filed with the Labour Relations Board, there are steps it can take to communicate with the employees as it might under the old system of a secret ballot vote although there are certain risks that any such communications entail.  Further understanding your organization’s structure in terms of a potential application for certification is important.  With only 5 days to respond to the application employers might want to consider a form of audit of your organization.

‍

If you are interested in attending a webinar or seminar in 2023 on this topic of unionization or having us assist in an audit of your organization’s operations, please let Chris or Mike know via email, or sign up to our Employment & Labour Newsletter here.

‍

Mike Weiler & Chris Drinovz

March 25, 2023

‍

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.

More and more Canadian businesses are being forced to handle internal investigations into complaints surrounding policy violation, including allegations of harassment, discrimination, or misconduct.  While these matters can quickly become an unwanted drain on internal resources, they require swift action, objectivity, sensitivity and knowledge of the law and procedure.  Should a workplace investigation lead to legal action, one must be armed with evidence of best-practice and a concise report that can be scrutinized by the judiciary.  This is where we come in…

‍

Here's a breakdown of the different phases of a workplace investigation and how an employment lawyer can help.

‍

Phase 1: Planning and Preparation

‍

The first phase of a workplace investigation involves planning and preparation. This includes identifying the scope of the investigation, determining who will conduct the investigation, and gathering relevant documents and information. An employment lawyer can help with this phase by providing guidance on the scope of the investigation, ensuring that it is legally compliant, and identifying potential legal risks.

‍

Phase 2: Investigation

‍

The second phase of a workplace investigation involves conducting interviews, gathering evidence, and analyzing the information collected. This can be a complex process, and an employment lawyer can help by conducting interviews on behalf of the company, analyzing the evidence collected, and providing legal advice on how to proceed.

‍

Phase 3: Report and Recommendations

‍

The third phase of a workplace investigation involves preparing a report and making recommendations based on the findings. An employment lawyer can help with this phase by preparing a detailed report that outlines the findings of the investigation, making recommendations for corrective action, and providing legal advice on how to proceed.

‍

Phase 4: Follow-Up

‍

The final phase of a workplace investigation involves follow-up and monitoring. This includes ensuring that corrective action is taken, monitoring compliance, and conducting follow-up investigations if necessary. An employment lawyer can help with this phase by providing ongoing legal advice, monitoring compliance, and conducting follow-up investigations if necessary.

‍

How Can We Help?

‍

Workplace investigations are a necessary part of running a company, but they can be complex and time-consuming. An employment lawyer as the outside investigator can help by providing guidance on the scope of the investigation, conducting interviews, analyzing evidence, preparing a report and recommendations, and providing ongoing privileged legal advice.

‍

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.

‍

We are thrilled to announce that KSW Lawyers and Chris Drinovz, have been ranked as a 5 Star Employment Law Firm and Lawyer in the 2023 edition of the "Best Employment Lawyers and Law Firms" in Canada list by HR Reporter. This year, a total of only 31 lawyers (from 26 prestigious firms) across Canada were recognized with this ranking, following a rigorous selection process.

‍

This prestigious recognition is a testament to the hard work and dedication of the KSW team and Chris Drinovz in providing exceptional legal services to their clients in the field of employment law. The 5-star rating is the highest honor given to law firms and lawyers by HR Reporter and is based on a rigorous 15 week long selection process that includes a survey of HR industry leaders and employment professionals, an assessment of the firm's track record, and peer review.

‍

To achieve this accolade, KSW Lawyers and Chris Drinovz demonstrated excellence in the following areas:

‍

• Quality of legal advice and representation
• Client service and responsiveness
• Expertise and experience in employment law
• Innovative solutions and strategies
• Thought leadership and contributions to the industry

‍

Leading Employment Law Lawyers

Chris Drinovz has been recognized as a 5 Star Employment Lawyer for his expertise in advising employers and HR professionals on a variety of issues. Canada’s HR leaders who took part in CHRR’s survey listed reasons for why they engage this year’s Best Employment Lawyers and Law Firms:  

‍

• “Workplace Investigations” 
• “COVID-related matters”  
• “Terminations/arbitration” 
• “Union grievances” 
• “Wrongful dismissal claims” 
• “Human rights/disability/accommodation issues” 
• “Development and interpretation of policies legislated by the Ontario government” 
• “Remote work arrangements”

‍

Leading Law Firm

‍

At KSW Lawyers, we are committed to providing our clients with the highest level of legal representation and personalized attention to help them achieve their goals. This recognition reinforces our commitment to excellence and inspires us to continue delivering exceptional results to our clients.

‍

We would like to thank Canadian HR Reporter for recognizing our hard work and dedication, and we look forward to continuing to serve our clients with distinction.

‍

If you are in need of legal assistance in the areas of employment or any other practice area, please do not hesitate to contact us.

‍

The new Underused Housing Tax (UHT) is an annual 1% property tax on the value of a residential property that is considered vacant or underused in Canada. It applies to residential property including detached houses, duplexes, triplexes, semi-detached houses and condos.

‍

The UHT applies to residential properties that are owned on or before December 31st of each calendar year and is applied retroactively to January 1, 2022. This means that owners will need to determine if they are required to file for the 2022 tax year.

Who Needs to file?

Every person who is identified as an owner of a residential property under the relevant land registration system, other than an excluded owner, now needs to file an Underused Housing Tax Return and Election Form annually.

‍

This includes but is not limited to:

• Children on title with parents for estate planning purposes
  ‍
• Parents on title with children as co-signors of a mortgage
  ‍
• Joint owners of residential rental property
  ‍
• Individuals who hold residential property in trust for other people or companies (including bare trusts, alter ego trusts, spousal trusts or joint partner trusts)
  ‍
• Anyone who has set up an Alter Ego Trust, Spousal Trusts or Joint Partner Trusts that has an interest in residential property
  ‍
• Any person who is the registered owner of residential property as a nominee of a bare trust
  ‍
• Individuals who are the owners of residential property in relation to a Joint Venture Agreement or partnership agreement in relation to residential property
  ‍
• Companies

How the UHT is calculated?

The UHT is calculated by taking 1% of the property’s specified value, multiplied by the ownership percentage. There are various exemptions available to property owners which can relieve them from having to pay the annual 1% tax.

‍

The intent of the UHT is to target vacant or underused houses in Canada, mainly those owned, directly or indirectly, by individuals who are not citizens or permanent residents of Canada.

‍

While most Canadian individuals are excluded from the UHT, there are situations where certain Canadian individuals have filing obligations. In order for a homeowner to be exempt, they have to be an excluded owner.

Who Is an Excluded Owner?

Excluded owners have no obligation to file under the UHT. A homeowner is an excluded owner if as of December 31st the owner is:

‍

• An individual that is a Canadian citizen or a permanent resident of Canada (except where the individual holds an interest in the property as a partner of a partnership or as a trustee of a trust).
  ‍
• A corporation incorporated under the laws of Canada or a province and the shares of which are listed on a Canadian stock exchange (Note- private corporations are not excluded owners)
  ‍
• A registered charity
  ‍
• A cooperative housing corporation
  ‍
• An Indigenous governing body or a corporation owned by an Indigenous governing body
  ‍
• A municipality or a corporation owned by a municipality
  ‍
• The government of Canada or an agent of the Canadian Government
  ‍
• The government of a province or an agent of the government of a province
  ‍
• Certain other public service bodies (e.g., universities, public colleges, school authorities, hospital authorities)

‍

If an owner is not an excluded owner, they are considered an affected owner under the wording of the UHT Act and have a UHT filing obligation and are subject to filing penalties.

Not Excluded Owners – Trustees and Partners

If an owner is a trustee of a trust (other than a trustee of a testamentary trust) or a partner of a partnership, those parties will be required to file under the Underused Housing Tax Act.

‍

If a bare trust agreement exists where the legal title holder of a property holds the title for the benefit of another individual (i.e. legal and beneficial title are different), this is considered a trust arrangement and the legal owner will have UHT filing obligations.

‍

Some examples of homeowners who are excluded owners are:

‍

• A Canadian citizen or permanent resident owns a rental property (100% legal and beneficial owner)
  ‍
• Non-resident for income tax purposes, but a Canadian citizen or permanent resident who holds 100% legal and beneficial title to a property

Some examples of homeowners who are affected owners are:

‍

• Two or more persons own a rental property. If a residential property is held as a rental property with a view of profit and sufficient activity to constitute a business, this could be considered a partnership
  ‍
• Any residential property held by a private corporation
  ‍
• Residential property held by a Trust
  ‍
• Residential property held in a corporation
  ‍
• Non-resident foreign individuals (not a Canadian citizen or a Canadian permanent resident) who owns residential property

‍

Please note that, for the above examples of owners who are affected owners, an obligation to file exists, however, exemptions from paying the UHT may still be available.

Exemptions from paying the Underused Housing Tax

If an owner is not an excluded owner, there is a UHT filing obligation. However, an exemption may still apply which would exempt the owner from paying any UHT. Broadly speaking, these exemptions can be categorized as noted below:

‍

• Based on the type of owner
  ‍
• Based on availability of the property
  ‍
• Occupancy of the property
  ‍
• Location and use of the property

‍

An owner only needs to qualify for one exemption to be exempt from paying UHT.

Underused Housing Tax Exemptions Based On the Type of Owner

The following exemptions are available under the UHT Act based on the type of owner:
‍

• New Ownership - The Owner acquired the property in the year and did not own that property at any time in the prior 9 calendar years.
  ‍
• Owner’s Death - The personal representative or other legal representative of a deceased individual is exempt for the calendar year in which the owner passed away and for the subsequent calendar year.
  ‍
• Another Owner’s Death - Where an owner with at least a 25% interest in the property dies, any other owner’s interest in the property is exempt for the calendar year in which the death occurred and for the subsequent calendar year.
  ‍
• Specified Canadian Corporations – Generally speaking, where an owner is a Canadian corporation that is owned or controlled by Canadian citizens or permanent residents will be exempt.
  ‍
• Specified Canadian Partnerships - Where all owners/members of the partnership are excluded owners, a specified Canadian corporation, or is a prescribed partnership.
  ‍
• Specified Canadian Trusts – An owner’s interest in a residential property is that of the trustee of a specified Canadian trust. A specific Canadian trust is a trust where every person with a beneficial interest in that trust is an excluded owner or a specified Canadian corporation or otherwise exempt.

Underused Housing Tax Exemptions Based on Availability of the Property

• A Newly Constructed Property - A residential property owner’s interest is exempt for a calendar year if the property was not substantially completed by April of that year.
  ‍
• Property Held by a Developer as Inventory for Sale - A residential property owner’s interest is exempt if the property is constructed in the first quarter of the year and is offered for sale to the public during the calendar year and the property had never been occupied by an individual as a place of residence of lodging during the calendar year.
  ‍
• Property not Suitable for Year-Round Use – The residential property is not suitable to be lived in year-round or seasonably inaccessible due to public access not being maintained year-round.
  ‍
• Uninhabitable Due to Disaster - Due to disaster or hazardous situations, the property cannot be inhabited for at least 60 consecutive days in the calendar year.
  ‍
• Uninhabitable Due to Major Renovation – An owner cannot live in the property for a consecutive 120 days due to ongoing major renovations. This exemption is only available once every 10 years.

Underused Housing Tax Exemptions Based on Occupancy of the Property

• Primary Place of Residence in Respect of an Individual - Primary place of residence for the year of the individual homeowner, their spouse or common-law partner, or their child attending a designated learning institution.
  ‍
• Qualifying Occupancy Test - Property occupied in periods of at least one month at a time, totaling at least 180 days in the year by a qualifying occupant. Qualifying occupant includes: 
• An arm’s length individual (to you and your spouse or common law partner) renting the property and there is a written  contract
• A non-arm’s length individual paying fair rent with a written contract
• The owner or their spouse or common-law partner who has a Canadian work permit
• The owner or their spouse or common-law partner, parent, or child who is a Canadian citizen or permanent resident

Underused Housing Tax Exemptions Based on Location & Use of the Property

‍

• Vacation property located in certain prescribed rural areas of Canada and used by an individual owner, their spouse or common-law partner for at least 28 days in the year.
  ‍
• Prescribed by regulation to be determined by Statistics Canada in the last census report as not being neither within a census metropolitan area nor within a specified census agglomeration and not within a population center.

Relevant Dates

The UHT form and election filing must be done for each relevant residential property for a calendar year, starting with December 31, 2022 by the following April 30th.

Underused Housing Tax Filing Penalties

CRA may assess and demand a penalty even if there is no UHT payable. If you fail to file your return by April 30th of the following calendar year, the penalty is calculated as the greater of the following:

‍

• $5,000 for individuals or $10,000 for corporations, and
• The total of:
• 5% of the UHT payable for the residential property for the calendar year, and 
• 3% of the UHT payable for the residential property for the calendar year multiplied by the number of complete months that the return is past due.

‍

Additional penalties apply if the homeowner fails to file by December 31st of the following year. In this case, CRA denies various exemptions from calculating the UHT, where the exemptions may actually be applicable if the filings were done by April 30th.

‍

All owners of residential property should contact their accountants or our office by emailing [email protected] as far in advance of April 30th of each year to obtain the necessary advice on whether they are required to file under the UHT Act and whether any UHT tax is a payable.

‍

This article is not legal advice. It is a summary of complex legislation that may or may not apply to you and your situation. If you are looking for legal advice in relation to the UHT tax a particular matter please contact one of our group members.

‍

‍

‍

‍

Introduction

‍

Whether you are an employer or an employee, workplace injuries can have serious consequences. The WorkSafeBC process can be complicated, that’s where the experienced employment law team at KSW Lawyers comes in. With over 10 years of experience handling all types of WorkSafeBC cases, our team of lawyers and designated paralegal can help guide you through the claims and appeals process.

‍

We can help injured workers secure the compensation they deserve, by providing guidance and support throughout the entire claims process, including helping submit a claim, gathering expert medical evidence to support their case, and drafting written submissions on their behalf, and navigate the appeals process if their claim is denied.

‍

For employers, we can provide guidance on their obligations and responsibilities, assessing the merits of a worker claim, responding to WorkSafeBC requests, navigating the claims process, reviewing and implementing safety policies, and minimizing the impact of workplace injuries on their business.

‍

In this article we provide some basic information about the compensation claim system, as well as services our team can provide. For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:

‍

• Overview of Workers’ Compensation in British Columbia
• Who is Covered by Workers’ Compensation Act in British Columbia?
• WorkSafeBC Claims Guide for Injured Workers

‍

What Happens When a Worker Gets Injured at Work

‍

When a worker sustains an injury or develops a medical condition that arises out of and in the course of their employment, both the worker and their employer have an obligation to report the incident to WorkSafeBC. If the worker submits a claim for compensation, WorkSafeBC begins the process of assessing the claim to determine if, and how, the worker will be compensated.

‍

Workplace injuries can have serious consequences for one’s health and career. Fortunately, BC’s Workers’ Compensation Act offers many protections and benefits to injured workers, including wage loss and health care benefits, vocational rehabilitation assistance, permanent partial disability awards for workers that have suffered a permanent injury, and more.

‍

In many cases, WorkSafeBC claims are straightforward and short lived. However, when a worker’s injury or medical condition is serious, long-lasting, or contested, the claim can become more difficult to navigate. This is especially the case when a workplace accident results in multiple injuries and/or medical conditions, and in particular psychological conditions, as all injuries and conditions are adjudicated on the claim.

‍

Disputing a WorkSafeBC Decision

‍

Both the worker and their employer have a right to dispute any decision made by WorkSafeBC by way of appeal to WorkSafeBC’s Review Division as well as the Workers’ Compensation Appeal Tribunal (WCAT).  The appeals process can be long and arduous. Moreover, a person unfamiliar with the tribunal system may find the process to be quite frustrating. If a worker disagrees with a Board decision, they can ask the Review Division to review it.  They have 90 calendar days to file a Request for Review.  If the worker disagrees with a Review Division decision, they can further file a notice of appeal to the Workers’ Compensation Appeal Tribunal (WCAT) within 30 days of the Review Division decision date.  

‍

It is important to note that not all matters decided by the Review Division are appealable to WCAT.  

‍

What happens when a worker is out of time to file a Request for Review or WCAT appeal? In rare and exceptional cases the Review Division or WCAT allow a late application to proceed.  Our KSW Lawyers Employment Group has been successful in late applications. Read more about the Claims process and our Client Wins in our article here.

‍

Having a legal representative assist with claim management and/or a review and appeal of a decision is an asset. KSW Lawyers has a specialized team of lawyers and a designated paralegal with extensive experience handling all types of WorkSafeBC cases (assisting both workers and employers). Appealing a decision is a time-sensitive and complicated process requiring an intimate familiarity with the rules, policies, and assessment programs. We have won reviews, appeals and judicial reviews for our clients over the last 10 years.

‍

‍

WorkSafeBC Claim Management for Workers - Let KSW Do the Heavy Lifting

‍

When an injured worker retains our services for claim management, we conduct a thorough examination of the claim disclosure to ensure that the claim has been appropriately handled to-date and to provide our professional opinion in relation to whether any adjudications or appeals are warranted.

‍

If so, we prepare comprehensive written submissions to the appropriate level (i.e. Board-level, Review Division, or Workers’ Compensation Appeal Tribunal) outlining the arguments for the adjudication or appeal, relying on the applicable legislation and policies, medical records, and any other relevant documentation. We work closely with physicians and other treatment providers to collect the necessary clinical records or medical reports needed to proceed with these matters.

‍

Navigating the intricacies of a complicated WorkSafeBC claim can be grueling at the best of times, and when a worker is injured or suffering from a disabling medical condition, the last thing they need to be dealing with is paperwork. We are dedicated to helping resolve WorkSafeBC claim issues in the most efficient manner as possible, so that workers and employers can move on.  

‍

Please see our WorkSafeBC Claims Guide for Injured Workers for our most commonly asked questions about WorkSafeBC claims. If you require further assistance or do not see your question, please do not hesitate to reach out to our team by either calling 604-591-7321 or by filling out our online submission form here.

‍

‍

WorkSafeBC Claim Management for Employers – KSW Is Here to Help

‍

As an employer, dealing with a workplace injury can be a challenging and stressful experience. At KSW Lawyers, we understand the importance of minimizing the impact of workplace injuries on your business. Here are some ways that our experienced employment law team can help employers:

• Assessing and responding to claims: Our team can help you assess the validity of a claim, and provide guidance on how to respond appropriately. We can also help you gather evidence to support your position, and negotiate with WorkSafeBC on your behalf.
  ‍
• Reviewing and updating policies: We can review your workplace safety policies and practices to ensure they are up-to-date and in compliance with WorkSafeBC regulations. We can also help you develop new policies to address specific workplace hazards or risks.
  ‍
• Representing you at hearings: If a claim is appealed to the Workers Compensation Appeal Tribunal, our team can represent you at the hearing. We can prepare and present evidence on your behalf, cross-examine witnesses, and make legal arguments to support your position.
  ‍
• Providing training: We can provide training to your staff on workplace safety best practices, including how to identify and report hazards, how to prevent workplace injuries, and how to respond to workplace incidents.
  ‍
• Advising on return-to-work programs: We can help you develop return-to-work programs for injured employees, which can help reduce the costs and impact of workplace injuries on your business.

‍

At KSW Lawyers, we understand the importance of resolving WorkSafeBC claims efficiently and effectively. With a proven track record of success, having won reviews, appeals, and judicial reviews for our clients over the past decade, our experienced team can provide legal assistance to help you manage the claims process and protect your business.

‍

Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact our experienced Employment & Disability Group.

Introduction

‍

When a worker sustains an injury or develops a medical condition that arises out of and in the course of their employment, both the worker and their employer have an obligation to report the incident to WorkSafeBC. If the worker submits a claim for compensation, WorkSafeBC begins the process of assessing the claim to determine if, and how, the worker will be compensated.

‍

For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:

‍

• Workplace Injuries and Workers Compensation Claims
• Overview of Workers’ Compensation in British Columbia
• Who is Covered by Workers’ Compensation Act in British Columbia?

‍

Guide for Injured Workers – Answering Questions About WorkSafeBC Claims

‍

1. You disagree with a WorkSafeBC decision. What can you do about this?

‍

You have 90 days from the date of the Board-level decision tofile a Request for Review to the Review Division. If you are still unhappy withthe outcome at the Review Division, you have 30 days from the date of theReview Division’s decision to file a Notice of Appeal to the Workers’Compensation Appeal Tribunal, provided that the Review Division’s decision isnot a final decision.

When you initiate a review or appeal, you will be given anopportunity to provide evidence by way of written submissions. If your employerchooses to participate in the review or appeal, they will be permitted toprovide a rebuttal submission, following which you will be given theopportunity to submit a final reply. At the Workers’ Compensation Appeal Tribunal,an oral hearing may be permitted (as opposed to written submissions) underlimited circumstances. Once all of the evidence is exchanged, either a ReviewOfficer or a Vice Chair will issue a written decision.

Client Win: On February 10, 2022, the Review Divisionallowed our application for an extension of time to file a request for reviewon the basis that we provided significant new evidence that was not availableat the time of the Board decision and warrants further investigation by theBoard.  The Review Division agreed thatspecial circumstances precluded the applicant from filing a request for reviewon time.  There was also a significant issueto be reviewed and the applicant would be prejudiced if the extension was denied.  You can read more about Review Decision R0287447 here.

‍

2. Your claim has been accepted by WorkSafeBC. What types of benefits are you entitled to receive?

‍

All claims are different, but generally if your claim has been accepted, you will be provided with temporary wage loss benefits for the period of time you are off work as a result of your workplace injury. You are provided with wage loss benefits as long as your injury continues to be “temporary”.
‍

In the event that your injury or medical condition does not resolve and becomes a permanent condition, WorkSafeBC may provide you with additional benefits, including vocational rehabilitation assistance and a permanent partial disability award (pension) which is payable until at least age 65.
‍

You will also be provided with health care benefits for the duration of your claim, provided that the health care treatment is reasonably available and will either treat, alleviate, or cure the compensable injury and/or medical condition.

‍

3. How are your wages calculated?

‍

WorkSafeBC refers your payable wages as the applicable weekly “wage rate.”  When a claim is accepted, WorkSafeBC immediately takes steps to calculate an initial wage rate, which is payable for the first 10 weeks of a claim. Provided that you receive regular remuneration based on the standard 5-day work week, WorkSafeBC will calculate your initial wage rate based on your rate of pay at the time of the workplace accident. In the event that you are a casual worker, a person who has purchased personal coverage, or have other extenuating circumstances, WorkSafeBC will rely upon alternate methods to calculate your initial wage rate.
‍

After 10 weeks of the claim, the initial wage rate is replaced by the long-term wage rate. The general rule for calculating a long-term wage rate is to base it upon the worker’s earnings in the 12 months preceding the workplace accident. However, exceptions to this general rule may apply. For example, if you are a temporary or casual worker, a person who has purchased personal coverage, a worker with no earnings (i.e. volunteer worker), an apprentice or learner, or a worker who was employed by the current employer for less than 12 months, WorkSafeBC will rely on alternate rules to calculate your long-term wage rate. In extraordinary circumstances, WorkSafeBC also has the discretion to increase a long-term wage rate if any of the standing rules results in a long-term wage rate that is inequitable in the circumstances.

‍

4.     What if your wage rate is incorrect?  ‍
_‍

We have helped many workers seek a review or appeal their wage rate to WCAT.  Often, the Review Division provides instructions to the WorkSafeBC Board with respect to further investigation required to determine the worker’s appropriate wage rate.  For example, Review Decision R0267836 and R0267836 concern initial and long-term wage rates that warranted further investigation into the nature of the worker’s job (casual or permanent), which trigger a different wage rate policy.  This gives workers the opportunity to provide further evidence to the Board that was missed originally so that an appropriate wage rate can be calculated.  

‍

This Review Decision R0273838 and R0273840 is another example.  The Review Division agreed that the employer’s reporting of the hours worked, and amounts paid to the worker were inconsistent and therefore unreliable to determine the worker’s initial and long-term wage rate.  As a result, “the evidence the Board has gathered so far has not provided a reliable earning figure for the three months before the worker’s injury... I am not satisfied that the Board can rely on the accuracy of the employer’s reported earning figures.”  The Review Division in this case ordered WorkSafeBC to consider the worker’s CRA tax returns and earnings related to another job, not previously considered by the Board.

‍

5. WorkSafeBC determined that your injury/medical condition is “permanent”. What does this mean and how does it impact your claim?

‍

In the vast majority of WorkSafeBC claims, the compensable injury and/or medical condition will eventually resolve. However, in some cases, the temporary injury either “stabilizes” or “plateaus” and are considered permanent conditions. WorkSafeBC defines a permanent condition as one that is not expected to significantly improve or significantly worsen in the following 12 months.

‍

When a permanent condition is accepted on the claim, WorkSafeBC acknowledges that the condition will continue to impact you for the rest of your life. For this reason, WorkSafeBC will often refer your claim to Long Term Disability Services for consideration of a permanent partial disability award, which is paid as a monthly pension until at least age 65. Additionally, if your permanent condition results in permanent restrictions and/or permanent limitations that prevent you from returning to your unmodified, pre-injury employment, you may be entitled to a referral to Vocational Rehabilitation Services for further assistance as well.

‍

We have helped many workers have their conditions accepted as permanent when the evidence indicated that a condition was not resolved.  In Review Decision  R0274412, for example, the Review Officer determined that WorkSafeBC erred in concluding that the worker’s chronic right forearm pain resolved such that he was not entitled to permanent partial disability benefits for this condition.  The Review Division agreed that this condition was permanent, and that the worker was entitled to permanent partial disability benefits for right forearm chronic pain.  As a result, the worker’s monthly disability compensation increased.

‍

6. You have been referred to Vocational Rehabilitation Services. What can you expect?

‍

If you have been referred to Vocational Rehabilitation Services, WorkSafeBC has determined that you were unable to return to your pre-injury job as a result of your permanent restrictions and limitations associated with your compensable condition. The assistance that you can expect to receive from Vocational Rehabilitation Services ultimately depends on the severity of your condition.

‍

If you can return to work with your pre-injury employer in a modified capacity, your involvement with Vocational Rehabilitation Services will likely be minimal. However, if that is not possible, Vocational Rehabilitation Services will work with you to either (a) find alternate employment in a related occupational field by utilizing your existing skillset and knowledge, or (b) provide you with education and training so that you are able to pursue a career in a different industry altogether.

‍

While you are actively working with Vocational Rehabilitation Services you can expect to receive vocational rehabilitation benefits, which are paid at wage rate equivalency. There are various types of vocational rehabilitation benefits, including planning benefits, job search benefits, training benefits, waiting-for-plan-to-start benefits, income continuity benefits, and more.

‍

The type of benefit you receive will relate directly to the phase of the vocational rehabilitation process.  If you feel that your job search benefits are inadequate to re-enter the workforce, you may seek a review of that decision to the Review Division.  In Review Decision R0274411, we successfully entitled our client to further job search benefits for another four months.

‍

Vocational rehabilitation benefits are ultimately paid at the discretion of WorkSafeBC. The benefits will cease if you no longer wish to participate in the process, when you successfully return to work, or when you have reached the end of the vocational rehabilitation process and have received the maximum available benefits, whichever comes first.

‍

In extreme cases, a workplace injury (and its resulting permanent restrictions and limitations) may prevent a worker from returning to work in any capacity. In these situations, Vocational Rehabilitation Services may decide that the worker is “competitively unemployable”. When this happens, a competitively unemployable recommendation is sent to Long Term Disability Services and the worker is ultimately provided with a monthly pension paid at wage rate equivalency until at least age 65, which effectively replaces their lost earnings as a result of their inability to work.

‍

7. You have been referred to Long Term Disability Services. What can you expect?

‍

When WorkSafeBC determines that your compensable injuries have become permanent, your claim will be referred to Long Term Disability Services where you will be awarded a permanent partial disability award. This award is paid out in the form of a monthly pension until at least age 65. Long Term Disability Services will assess both your loss of function as well as your loss of earnings and pay you the higher award. A cost-of-living adjustment is applied to your pension award each January.  This is often referred to as “COLA.”

‍

In order to assess loss of function, WorkSafeBC may request that you attend a permanent functional impairment evaluation (or in the case of a psychological condition, a psychological assessment). Long Term Disability Services will consider the medical findings and assign a disability rating, which is used to calculate the value of the loss of function award.

‍

To assess loss of earnings, Long Term Disability Services will compare your pre-injury earnings to your long-term earnings potential. It is important to note that your long-term earnings potential is not necessarily reflective of your actual post-injury earnings. Instead, Long Term Disability Services may rely upon the “employability assessment” prepared by Vocational Rehabilitation Services, which determines your earnings potential in the next 3-5 years within the context of the approved vocational rehabilitation plan. In the event that the resulting number is lower than your pre-injury earnings, you will be deemed to have sustained a loss of earnings as a result of the workplace injury.

‍

It is worth noting that it will take several months or longer for Long Term Disability Awards to issue a decision with respect to the value of your pension; however, rest assured that you will receive a retroactive benefit dating back to the date that your condition was deemed permanent once a decision is issued.

‍

8. You are in receipt of a permanent partial disability award (pension). How long will you continue to receive this award?

‍

If you have been assessed for a pension, it will be paid to you on a monthly basis from the date that your condition became permanent until the retirement date established on your claim. By default, the retirement date is age 65; however, WorkSafeBC has the discretion to extend the retirement date in certain situations. When doing so, WorkSafeBC will consider your retirement intentions prior to the workplace accident as well as your current circumstances (e.g. continued employment in your mid-60s).

‍

If you are 62 or younger when your pension is assessed, WorkSafeBC will defer making any decisions with respect to your retirement date. After age 63, you can expect WorkSafeBC to contact you to discuss your retirement intentions, plan, and current circumstances. At that time, a retirement date will be established on the claim. This will be the end date of your pension.

‍

9. Your WorkSafeBC claim previously closed, but your accepted injury and/or medication condition has recurred/changed. What do you do?

‍

If your accepted injury/condition has either recurred with no intervening event or has significantly changed/worsened, WorkSafeBC has the discretion to reopen your claim. In order to request a reopening of your claim, you must make a formal request to WorkSafeBC.

‍

If your injury/condition has recurred or changed as a result of another incident or injury, WorkSafeBC may direct you to commence a new WorkSafeBC claim or request an adjudication on another claim instead.

‍

WorkSafeBC Claim Management - Let KSW Do the Heavy Lifting

‍

With over 10 years of experience handling all types of WorkSafeBC cases, our team of lawyers and designated paralegal can help guide you through the claims and appeals process, and help you secure the compensation you deserve. Navigating the intricacies of a complicated WorkSafeBC claim can be grueling at the best of times, and when you are injured or suffering from a disabling medical condition, the last thing you need to be dealing with is paperwork. We are dedicated to helping you resolve WorkSafeBC claim issues so you can move on with your life. If you require further assistance, please do not hesitate to reach out to our team by either calling 604-591-7321 or by filling out our online submission form here.

‍

Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact our experienced Employment & Disability Group.

In the recent decision Forbes v Glenmore Printing Ltd, 2023 BCSC 25 (“Forbes”), the BC Supreme Court established that a termination clause in an employment contract does not have to mention “group termination” entitlement in order to be enforceable. In this case, a former employee sought to have the termination clause of his employment contract deemed unenforceable. KSW Lawyers’ employment law practice leader, Chris Drinovz, successfully represented the Employer in opposing this argument at trial.

‍

Background

‍

The defendant in the case, Glenmore Printing Ltd. (“Glenmore”), a local custom print and packaging business, employed Mr. Forbes as a senior pressman for 6 years and 4 months until he was laid off as a result of the COVID-19 pandemic and economic downturn.

The parties agreed prior to trial that the layoff was a constructive dismissal, and the only remaining issue at trial was the value of the severance, which would represent payment in lieu of notice.
‍

Glenmore argued that it had satisfied all its legal obligations as it paid Mr. Forbes 6 weeks’ severance in accordance with both the Employment Standards Act, RSBC 1996, c 113 (the “ESA”) and the termination clause in the signed employment contract.
‍

Mr. Forbes argued that the employment contract was unenforceable on the basis that it provided less entitlement than contemplated by the minimum requirements of the group termination provisions set out under section 64 of the ESA, therefore entitling him to a higher common law reasonable notice instead.

‍

Analysis

‍

It is well-established in BC law that if a termination clause potentially violates the ESA it will not be enforceable: Shore v Ladner Downs, 1998 CanLII 5755 (BC CA). Traditionally, this has applied primarily to termination clauses that provided for a lesser notice period than those set out in section 63 of the ESA.
‍

In this case, Mr. Forbes brought a novel argument attempting to extend this principle to include termination clauses that limit the employee’s entitlement to the formula set out in section 64 of the ESA which deals with “group terminations” (of 50 or more employees). Although Mr. Forbes was not part of a group termination in this case, if he had been he would have been entitled to more notice under section 64 than provided for by his employment agreement.
‍

Mr. Forbes’ employment contract set out the following termination clause (the “Clause”) which essentially mirrored the language contained in section 63 of the ESA:

        “Glenmore Printing may terminate this Agreement by giving the Employee

       (a) After the first three months of continuous employment, one week’s notice or wages,

        (b) After the first year of continuous employment, two weeks’ notice or wages, and

        (c) After three consecutive years of employment, three weeks’ notice or wages, plus one additional week’s notice or wages for each additional year of employment to a maximum of eight weeks’ notice or wages.”

‍

At trial, Mr. Forbes argued that by imposing an 8 week maximum for notice in the Clause, Glenmore was attempting to circumvent the minimum notice requirements for group terminations under section 64.
‍

The Court rejected Mr. Forbes’ argument.
‍

Instead, the Court concluded that the Clause was enforceable because section 63 of the ESA (which provides for a maximum of 8 weeks notice), establishes the minimum statutory requirements that are needed to oust the common law entitlement to reasonable notice, and not section 64.
‍

Further, the Court found that the Clause was enforceable because it was merely silent on the issue of Mr. Forbes’ entitlements in the event of a group termination, rather than expressly attempting to limit his entitlements in the event of a group termination (which would likely be unenforceable). This is because, where an employment agreement is silent on an issue, the employer will still be bound by the provincial employment standards legislation.
‍

In this case, the Clause did not place any limitations on Mr. Forbes’ potential entitlement in the event of a mass termination under section 64.
‍

In making these findings, the Court relied on Ly v British Columbia (Interior Health Authority), 2017 BCSC 42 (“Ly”), where it was determined that an extended probationary period did not expressly circumvent s 63 of the ESA, and that employees subject to an extended probationary period would still be entitled to benefits in accordance with section 63.
‍

A similar conclusion was also reached by the Ontario Court of Appeal once more in Nemeth v Hatch Ltd, 2018 ONCA 7 (“Nemeth”), the court decided that silence on severance pay did not denote an intention to contract out of Ontario’s employment standards regarding additional severance pay, and thus the termination clause was not void.

‍

Takeaways

1. In British Columbia, section 63 of the ESA (which provides or a maximum of 8 weeks’ notice for individual terminations) rather than section 64 (which provides a maximum of 24 weeks for group terminations) sets the minimum amount of notice required to limit an employee’s entitlement to common law reasonable notice.
   ‍
2. In order to be unenforceable, a termination clause needs to contain express language that points to an intention to contract out of the ESA. For example, a termination clause stating that an employee is only entitled to 6 weeks’ notice or pay in lieu of notice would likely be unenforceable.
   ‍
3. Employers should review and have their employment agreements updated periodically in order to limit their exposure to common law reasonable notice.  An enforceable contract can help avoid litigation costs down the road, and helps create certainty for both the employer and the employee.
   ‍
4. Employees should review their employment agreements carefully (ideally with an employment lawyer), especially when the contract contains a termination clause. An enforceable termination clause could potentially limit an employee to significantly less notice than they would be entitled to under the common law.
   ‍

Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact Chris Drinovz. Our experienced Employment & Disability Group is ready to assist you. Get in touch today.

FOR IMMEDIATE RELEASE

‍

Surrey, BC, March 31, 2023 – KSW Lawyers, a leading law firm in the Fraser Valley and lower mainland, has established a new practice area in the field of intellectual property with their lawyer, Junki Hong, taking the lead. Working alongside our associates at Merizzi Ramsbottom & Forster (MRF), a highly regarded intellectual property law firm with offices in Vancouver, Victoria and Ottawa, KSW Lawyers is expanding its offering of services to its clientele.

‍

“I’m so happy to start working in a new practice area of the firm, particularly where we can assist our existing corporate clients with ongoing trademark and other IP matters and assist new business owners who need to trademark and protect their critical business differentiation,” says Junki Hong, lawyer of KSW Lawyers.

‍

KSW Lawyers will also propel its trademark practice area with the partnership of MRF. MRF are leaders in trademark, industrial design and patent procurement in the high-tech industry and support leading companies in the IT, science and engineering sectors in protecting and leveraging their innovation and branding. As both KSW Lawyers and MRF have corporate clients that need to be supported in various complex legal needs, all of our clients can benefit from the wealth of knowledge at their disposal.  

‍

“On behalf of MRF, I am very excited to support KSW’s exceptional depth and scope of legal services with our experience in patents, trademarks and other forms of intellectual property. We look forward to working together with KSW in servicing clients in the Fraser Valley and the Lower Mainland for all their IP needs,” says Alistair Forster, Lawyer & Partner at MRF.

‍

Christopher Drinovz, Partner and Lawyer at KSW Lawyers stated, “In considering this collaboration, I was impressed by the knowledge, friendliness and professionalism MRF demonstrated in providing high-quality work to all of their clients. Having MRF matched with Junki’s dedication as a trademark lawyer will be a welcoming assurance for our clients that our firm continues to expand to the advantage of our clients.”

‍

KSW Lawyers was founded in 1973 and primarily serves clients in Surrey and the surrounding areas in matters of business law and real estate transactions. Since that time, however, our firm has grown in size and scope to be in a position to represent individual and corporate clients across a wide variety of practice areas, now including intellectual property. Today, we maintain office locations in Surrey, South Surrey/White Rock, Abbotsford, Langley and Vancouver, and our lawyers serve clients throughout the Fraser Valley and the Lower Mainland.

‍

To learn more about KSW Lawyers, how they help their clients, and how they can assist you in your legal matters, call (604) 591-7321 or visit kswlawyers.ca.
‍

For more information contact:

KSW Lawyers

Email:       [email protected]

Phone:     (604) 591-7321

Website:  kswlawyers.ca

‍

Merizzi Ramsbottom & Forster

Email:       [email protected]

Phone:     (778) 677-8772

Website:  mrfip.com

‍