KSW Lawyers is proud to announce that two of our very own lawyers have been recognized in the 2023 edition of the Canadian Legal Lexpert Directory. Chris Drinovz has been recognized in the Employment Law category as a "Repeatedly Recommended" lawyer for Vancouver Leading Practitioners - Employers. Meanwhile, Kanchan Dhahan has been recognized in the Family Law category as one of the "Lawyers to Watch" for Vancouver Leading Practitioners.

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Being recognized in the Canadian Legal Lexpert Directory is no small feat, as it is one of the most respected legal directories in the country. Lawyers are chosen through an extensive peer review process, which ensures that only the most skilled and accomplished lawyers are recognized in the directory. It serves as a reliable source for clients looking for legal expertise in various fields, and the lawyers recognized in the directory are considered to be among the best in their respective categories.

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This prestigious recognition is a testament to the exceptional legal talent and dedication of our lawyers at KSW Lawyers. We are proud to have lawyers like Chris and Kanchan on our team, who continuously provide high-quality legal services and expertise to our clients.

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Leading Employment Law Lawyers

Chris Drinovz has been recognized in the Employment Law category as a Leading Practitioner (Vancouver) due to his expertise in advising employers on a variety of issues, including termination, human rights, and workplace harassment. His extensive experience in the field, combined with his commitment to providing high-quality legal services to clients, has earned him this prestigious recognition.

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Leading Family Law Lawyers

Kanchan Dhahan was recognized in the Family Law category as a Leading Practitioner (Vancouver) as a skilled family lawyer who has helped many clients navigate the complexities of family law. Her extensive knowledge of family law, interest in complex cases, coupled with her compassionate approach to handling cases, have made her a standout lawyer in her field.

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We congratulate Chris and Kanchan on this well-deserved recognition, and we look forward to continuing to provide our clients with exceptional legal services. If you are in need of legal assistance in the areas of employment or family law, or any other practice area, please do not hesitate to contact us.

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A "shotgun clause" is a rule in a shareholder agreement that forces shareholders to either buy or sell their shares at a certain price. It's often used in small companies where shareholders have a close relationship and want to ensure they can leave if they need to. In British Columbia, using a shotgun clause can have both positive and negative effects.

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The clause can help settle disputes between shareholders and give shareholders an easy way to get their money out of the company. But it can also force a shareholder to leave without their agreement, which can be bad if they've invested a lot of time and money. Additionally, it can lead to undervaluation of the company if a shareholder wants to sell their shares for less than they're worth.

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Before deciding to use a shotgun clause, it's important to consider both the advantages and disadvantages. Talking to a lawyer can help business owners make an informed decision. It's also important to remember that a shotgun clause is not necessary and may not be the best option for every company.

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Greater Langley Chamber of Commerce has deep community roots, going back to the 1931 formation of the Langley Board of Trade.

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The organization was started as the Depression was in full swing, and among the people involved was E.J. Cox, who started the Langley Advance the same year. It is one of the newspapers that merged to form the existing Advance Times, which remains an active chamber member 92 years later.

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At one of its early meetings on Oct. 5, 1931, the board of trade dealt with some issues which remain topical today – transportation and work done by unlicensed contractors.

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E.A. Easingwood noted that itinerant peddlers were doing work in Langley, but did not always have business licences or pay taxes locally.

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In recent years, the chamber has been successful in advocating for mobile business licences.

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Another hot issue at the 1931 meeting was closure of the Canadian National railway station in Fort Langley because of the Depression. Board of Trade members lobbied for it to stay open.

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The chamber continues to discuss transportation issues, from advocating for bus service to Gloucester Estates Industrial Park, to obtaining details about SkyTrain coming to Langley, and advocating for improvements to Highway #1.

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The organization eventually became the Langley Chamber of Commerce, and its present name came after joining forces with the Aldergrove (in 1993) and Fort Langley (later North Langley) chambers (in 2000).

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Longtime manager and CEO (late) Lynn Whitehouse was a key driving force in the success of the chamber for 30 years, serving from 1986 to 2016.

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More than any other individual, she made the Langley chamber well-known in provincial and national circles, as an active member of the B.C. and Canadian chambers.

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Much has changed since 1931, and even since Whitehouse started with the chamber in 1986. Langley is now one of the fastest-growing communities in B.C.

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While much of the growth has occurred in the Township, Langley City is bracing for a great deal of growth and change with the coming of SkyTrain.

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Means of communication has also changed dramatically. Powerful cellphones, digital media, software programs like Zoom, and continuing changes in technology have changed the world of business dramatically.

The chamber’s current CEO Cory Redekop believes change will be ever-present going forward.

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Vice-president Chris Drinovz, an employment lawyer with KSW Lawyers, is set to take over as chamber president in September.

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He reflects on the chamber’s long history.

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“The year 2023 is our 92nd year as a chamber of commerce, making the Langley chamber one of the longest-serving chambers in the province,” he noted.

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“If you think about what Langley would have been 92 years ago, in some ways our community could not have looked different. There would have been different industries and businesses operating, and the community would have had far different population and demographics. Despite those differences, the need for a business association was still as true then as it is today,” Drinovz noted.

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“A group of business owners and professionals gathered together 92 years ago and realized that by connecting with one another they were stronger together, their voice louder, and their opportunities greater. I think that is still a pretty relevant thought today.”

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Asked about the role that technology will play in the chamber’s future, he said: “I think the goal is to meld the two (technology and in-person meetings) together and try for the best of both worlds. We learned during the pandemic that virtual meetings do work and technology can be leveraged to offer both convenience and flexibility for members.”

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He reflected on the future and moving ahead without the restrictions which hampered both businesses and individuals during the past three years.

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“I’m excited about the future of the chamber. For the past three years, helping our members get through COVID-19 had been the primary focus. The pandemic is largely behind us now, which allows our business community to come together again, connect, collaborate, and focus on the other things that will help Langley business be more successful.

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“Langley, as a community, is seeing incredible growth – and so is the chamber. In the past six months, we’ve seen some really good growth in our chamber membership as we get closer to 1,000 local businesses as members. This makes us one of the larger chambers in the province as well. I’m looking forward to us building on that growth in the months and years ahead.

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“Over my term as president, I’m also looking forward to the chamber continuing to expand and develop our events offerings, creating more opportunities for business connections and education.”

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He has enjoyed serving on the chamber board and looks forward to making more connections with members.

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Written by Frank Bucholtz
Special to Langley Advance Times

Article link

On February 7, 2023, Bill 2, the National Day for Truth and Reconciliation Act, was introduced in the Legislative Assembly of British Columbia. Bill 2 proposes that the BC government recognize the National Day for Truth and Reconciliation, September 30, as a public holiday in the province and amend the BC Employment Standards Act to establish a provincial statutory holiday. Read more about the history and meaning of this Day here.

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Bill 2 received assent on March 9, 2023 passing into law - the National Day for Truth and Reconciliation now becomes a provincial statutory holiday in BC, and eligible workers will be able to observe September 30 with a paid day off or receive payment at premium rates if required to work.

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Payroll and Scheduling Considerations for Stat Holidays

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Once the Bill is passed, eligible employees will be entitled to a paid day off on September 30

1. This applies to employees after they have been employed for 30 calendar days, and those who have earned wages on 15 of the 30 days before the statutory holiday
2. They are paid an "average day's wages" - take the amount earned in the past 30 days an divide it by the number of days worked.

If an employee works on the stat holiday, then the employee is entitled to the above statutory holiday pay PLUS 1.5 times the employee’s regular wage for time worked up to 12 hours, and double the employee’s regular wage for any time worked over 12 hours. See "Calculating Stat Pay" .

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Statutory Pay and Day Off in Lieu

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By default, when a statutory holiday falls on a workday during the week, employees get the day off with pay, and all eligible employees are entitled to stat pay even if they weren't scheduled to work or if that was their day off.  If the statutory holiday falls during the weekend, like September 30th this year (Saturday), the default under the Employment Standards Act would be for the employer to pay everyone for that day (Saturday).

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However, it is common practice is for employers to substitute another day for a statutory holiday day off (i.e. giving everyone Monday off paid in lieu). If this is done, the employer must have the agreement of that particular employee, or the majority of the group of employees it is substituting the holiday day for.

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In practice it is not usually an issue, but technically there is a requirement for the employer to retain records of the agreement to substitute for 4 years:

        Substituting another day for a statutory holiday

        48   (1)An employer may for one or more employees at a workplace substitute another day off for a statutory holiday if the employer and the employee or a majority of those employees, as the case may be, agree to the substitution.

               (2)Any employees affected by the substitution of another day for a statutory holiday have the same rights under this Act and their employer has the same duties under this Act as if the other day were a statutory holiday.

               (3)An employer must retain for 4 years records of agreements made under subsection (1).

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For full details on stat holidays and Employment Standards, visit the provincial government site here.

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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.

Health Canada granted an exemption from the Controlled Drugs and Substances Act to the Province of BC, effective between January 31, 2023 to January 31, 2026. Under this exemption, adults (18 years and older) in BC are not going to be arrested or charged for possessing small amounts (up to combined total of 2.5 grams) of certain illegal drugs for personal use.

While this is unlikely to significantly disrupt the status quo respecting drugs and alcohol in the workplace, there are several issues that employers should consider in light of this exemption.

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Overview of Drug Possession Exemption

The illegal drugs covered by the exemption are:

• Opioids (such as heroin, morphine, and fentanyl)

• Crack and powder cocaine

• Methamphetamine (Meth)

• MDMA (Ecstasy)

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This exemption does not apply in the following circumstances, where possession remains illegal:

• On the premises of elementary and secondary schools and licensed child-care facilities

• At airports

• On Canadian Coast Guard vessels and helicopters

• On a motor vehicle or watercraft that is operated by a minor (under 18 year of age), whether or not it is in motion

• Members of the Canadian Armed Forces

• People under the age of 18

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Although possession under this exemption is allowed, illegal drug use continues to be prohibited on private property. This may include places like shopping malls, bars, cafes, and workplaces. Police will continue to retain legal authority to remove people from these premises if open drug use is occurring against the wishes of the owner.

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What about Drugs and the Workplace?

In British Columbia, under the Workers Compensation Act and the Occupational Health and Safety Regulation employers have a duty to ensure a safe and healthy workplace, including protecting employees from undue risk created by impaired workers.

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The regulations specify that employers must take all reasonable steps to protect workers from the hazards associated with drug and alcohol use, including providing information and training to workers, developing and implementing drug and alcohol policies, and taking appropriate action in the event of violations. Drug and alcohol testing may be conducted in certain limited circumstances.

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Despite this newly implemented exemption under the Controlled Drugs and Substances Act, employers in British Columbia can establish policies that prohibit possession and use of drugs in the workplace. Employers have the right to set standards of behavior and performance for their employees, and require that employees be free from the influence of drugs (or other substances) while at work.

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What Employers Should Watch Out For

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Any drug testing and any disciplinary action taken must be done in accordance with applicable laws, such as the provincial or Federal human rights legislation (depending on the employer’s jurisdiction) and the applicable privacy act, and must be based on evidence of impaired performance or safety risks.

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Employers should also be aware that under federal and provincial human rights legislation, substance use disorder is considered a disability.  Discrimination based on disability is not legal, and employers have a duty to accommodate disabilities to the point of undue hardship, considered on a case-by-case basis. Before taking any disciplinary action such as terminating an employee who has shown signs of impairment, we highly recommend seeking legal advice to discuss the particular case and any potential human rights discrimination issues.

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Employers should also consider reviewing and updating their impairment/drug and substance use policies in the workplace, to ensure the correct language is used (i.e. “illegal drugs” etc) and that they include reference to the exemption where appropriate.

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Takeaways

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1. Employers are encouraged to develop policies and procedures (or review and revise existing ones) that address impairment/drugs and substance use in the workplace.
2. Employers should communicate their impairment/drugs and substance use policy clearly to workers.
3. Employers should ask everyone at their workplace to review the existing applicable workplace policy, and confirm whether this exemption modifies your current policy. If you’d like assistance with drafting a workplace policy update, please don’t hesitate to reach out to the writer.
4. Managers and supervisors should be educated in how to recognize and manage substance use issues and employees, and how to apply the workplace policy consistently and fairly.
5. Employers should seek advice before taking disciplinary action against employees that might have a substance use disorder.
6. Employers should establish or promote programs such as an Employee Assistance Program (EAP) to support employees dealing with substance use issues.
7. Review WorkSafeBC resources.

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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.

If you’re thinking of buying or selling a home, you should be aware of 2 major changes in the law that came into effect on January 1st, 2023.

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The first major change is that non-residents of Canada have been banned from buying residential property for the next 2 years. If a company is buying a residential property, and any foreign shareholder owns or controls at least 3% of that company, then the company is considered a foreign buyer and is disqualified from purchasing residential property in Canada for the next 2 years. There are several exemptions from the ban, including Canadian citizens and permanent residents, refugees, and some international students, among others.

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The second major change is the introduction of a 3-business day “cooling-off period”. During this cooling-off period, a buyer can rescind its offer and back out of the deal for any reason, even if their offer has been accepted. The cooling-off time is intended to help buyers fully consider whether a purchase is right for them, even in a hot market. If a buyer changes their mind, they must pay a rescission fee of 0.25% to the Seller, amounting to $2,500 for every $1 million of the purchase price.

If you have questions on these new laws or any other legal matters, reach out to Aman Bindra at [email protected] or 604-591-7321 today.

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If you're considering separation, or have recently gone through one, you might be thinking about learning more about separation agreements.

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Separation agreements are a great way to make sure everyone knows their rights and responsibilities for issues including property division, child support, parenting time, and spousal support. Assuming you and your ex-spouse are both on-board, separation agreements allow you to have more control on how you want to navigate these types of issues.

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Separation agreements are also a great way to settle matters outside of court and litigation. Going to court generally means more financial and emotional stress as compared to separation agreement.

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This article will take a closer look at some of the most common questions that come up about separation agreements, such as: what is a separation agreement, what issues can it deal with, and why you should consider making one.

What does separation mean?

Separation occurs when two spouses end their marriage-like relationship. The term spouse refers to a person who is married to or has lived with their partner in a marriage-like relationship. To constitute a marriage-like relationship, partners must have either lived together for at least two years, or less than two years if they have a child with the other person.

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Separation marks the end of the spousal relationship and occurs when one or both people decide to dissolve the relationship, share their decision with the other person, and stop acting as if the spousal relationship still exists.

What is a separation agreement?

A separation agreement is a legal contract between two individuals that spells out how they have decided to resolve property division, support, and parenting issues related to their separation.

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A separation agreement needs to be signed by both parties, and it should be signed in front of one or two witnesses. The witness does not have to be a lawyer. Once the document is signed, it becomes a legally binding contract between the parties.

Why make a separation agreement?

Making a separation agreement encourages couples to settle their issues outside of court. It's usually quicker and cheaper to resolve family law issues by way of separation agreements rather than going to court.

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In addition, separation agreements are legally enforceable. This means that the parties to the agreement cannot breach its terms and get away with it. If one party doesn't follow the terms of the agreement, then the other party can go to court and ask for remedies, including enforcement of the terms.

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The final advantage is that everyone knows what they're getting into and what their rights are under the agreement when they sign it. So, there's less confusion about what happens next after a couple separates. This can make their life post-separation much smoother than if they rely on informal arrangements instead.

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What can separation agreements deal with?

A separation agreement can deal with almost anything related to the parties' relationship, including:

Parenting Arrangements

The agreement can set out the details about parenting time and allocate decision-making responsibilities about the children. The parties can lay out how much time each parent will spend with the children, including over the school year and holidays. They can also decide who will make important decisions about their children's lives, like where they go to school and what medical treatments they receive.

Child Support

The agreement can set out the child support payable by one parent to another. Child support is taken very seriously by our courts; it is viewed as a right of the child and not a negotiable term of an agreement. The amount of child support depends on the payor parent's income. If both parents have shared parenting time, meaning that each has care of the children at least 40% of the time, then the child support payable depends on both parents' income.

Spousal Support

The agreement can set out whether spousal support is payable and if it is, then it can set out the amount, duration, and circumstances under which this support will continue or end. Spousal support is not automatic and it is something that can be negotiated. If one spouse is financially dependent on the other or can't become self-sufficient (such as due to illness), they may be entitled to spousal support.

Division of Family Assets & Property

The agreement can set out how assets and property will be divided. The BC Family Law Act sets out which assets are considered family property and how they should be divided. Generally, all assets, whether in joint or sole names of the parties are divided equally. There are exceptions though, called excluded property. The Act addresses how to handle excluded property—assets that are not considered family property. It's important to keep in mind that, under the Act, the increase in value of excluded property during the relationship is divisible between the spouses.

Division of Family Debt

The agreement can set out how debt will be divided. In most cases, each spouse will be responsible for half of any debt incurred during a relationship. They may also be liable for an equal share of debt accrued post-separation, such as debt incurred to the maintain family property.

Life Insurance Policies

The agreement can set out how life insurance policies will be divided, who will cover the premiums, and whether any of the proceeds will be payable to a third party.

Tax Planning Costs

The agreement can set out who will pay the costs of tax planning, estate planning, retirement planning, and income tax preparation.

The Family Home

The agreement can set out how the family home will be divided, who will live in it, and how much each spouse will pay for their share of the mortgage. If one spouse wants to sell their portion, the agreement can specify who has the first right to buy and at what price.

Pet Ownership

The agreement can determine which spouse will keep the family pets, and whether or not the animals are to be divided. The agreement can also include a clause detailing who will pay for any additional costs associated with taking care of the pet.

A separation agreement may also describe what will happen if the parties reconcile. It is not unusual for a Separation agreement to state that it will become a marriage agreement or cohabitation agreement in the event of reconciliation and that it will remain legally binding even if they get back together.

What do I need to make a separation agreement?

While people in BC can draft their own separation agreement without the help of a lawyer, it is highly recommended that people hire a family law lawyer to review their separation agreement before signing. A family lawyer can help ensure that all the legal requirements have been met and that nothing has been forgotten. This will ensure your rights are protected and you are well represented in court if necessary.

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Spouses should each contract a separate family lawyer in order to receive independent legal advice and representation. This will ensure each party's legal rights and interests are fully represented in the agreement.

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In addition, each party should make a full financial disclosure prior to drafting an agreement. Both parties must be completely open with their assets, liabilities, and incomes. Full financial disclosure includes giving information about RRSPs, pensions, insurance policies, investments, bank accounts, stocks, companies, and debts owed (such as mortgages, lines of credit, credit cards, and personal loans).

Do I need a separation agreement if I'm going through a divorce?

To get a divorce order, you have to start a court action and get the order through the courts.

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A separation agreement is not required to get the divorce order unless children are involved and if there is no court order in place regarding the children's care and support. If children are involved, the court has a duty to ensure that reasonable financial arrangements have been made for their care and support. So, the agreement can set out the terms about care and support.

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Basically, a couple can speed up their divorce by having a separation agreement in place. The added bonus is that by negotiating a separation agreement, you generally pay less in legal fees, you resolve the issues quicker than going to court, and the process is less stressful for both parties.

What if my spouse refuses to work on a separation agreement?

If your spouse refuses to cooperate with the separation agreement process, you have several options. While you can't force someone to sign an agreement, a lawyer may be able to negotiate an agreement on your behalf. Alternatively, you can suggest ways to work out an agreement without litigation. For example:

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Mediation is a common option for separating couples. Mediators are neutral third parties who help you and your spouse reach an agreement outside of court.

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Collaborative negotiation is another option. In this case, you each have your own lawyer and agree that it is in everyone's best interest to resolve the matter without going to court.

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Arbitration is yet another option. An arbitrator is a neutral third party who makes a decision about the issue(s). This can be helpful if you and your spouse are unable to come to an agreement on your own and want to avoid court.

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If all else fails, you can take your case to court. This is generally the most expensive option. It can also be time-consuming and stressful for everyone involved. If you decide to go this route, be prepared for a long battle.

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FOR IMMEDIATE RELEASE
January 6, 2023

Surrey, BC, January 6, 2023 – KSW Lawyers, a leading law firm in the Fraser Valley and lower mainland, is pleased to announce Andrew Zacharias has joined the Partnership of KSW Lawyers.

“With the continuous growth of the firm in its people and practice areas, I’m proud to solidify my connection to the firm,” says Andrew Zacharias.

Andrew has been with the firm since 2014 and has practiced law since 2009. As one of our senior lawyers in the Abbotsford office, Andrew is a strong litigator with a broad range of experience and successful outcomes both in trial and outside of court. As part of the litigation group at KSW Lawyers, he not only works diligently fighting alongside his clients but also mentors many of the summer and articling students that article at our firm. Having grown up in Chilliwack, Andrew enjoys not only practicing law in his community but also being a part of its societies and associations. Andrew was previously president of the Chilliwack Bar Association, was a member of the Chilliwack Fraser Rotary Club, was on the Board of Directors of the Chilliwack Hospice Society and is currently a member of the Fraser Valley Estate Planning Council.

As someone who enjoys mentoring students, it is no surprise that Andrew also enjoys coaching local high school football and community hockey teams in his spare time.

“We are excited for this new chapter and look forward to the new opportunities this addition to the partnership brings,” said Chris Drinovz, partner at KSW Lawyers. “We have enjoyed working with Andy over the years and are excited to bring his knowledge and skill to the partnership table. On behalf of the firm, congratulations, Andrew.”

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. 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.

For more information contact:
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KSW Lawyers
Email:       [email protected]
Phone:     (604) 591-7321
Website:  kswlawyers.ca

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The recent decision of LaFleche v. NLFD Auto dba Prince George Ford (No. 2),  2022 BCHRT 88, highlights the careful approach that employers should take when employees are returning to work after a leave of absence.

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In this case, the BC Human Rights Tribunal found that Ford (the employer) removed Ms. LaFleche (the employee) from her marketing manager position and constructively dismissed her from her employment. In so doing, the Employer (Ford) discriminated against Ms. LaFleche based on sex and family status contrary to s. 13 of the Human Rights Code.

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As a result of the discrimination, the Tribunal awarded the employee $12,000 for injury to her dignity, feelings and self-respect as well as $66,625 for lost wages she would have received had she returned to work in July 2019 as planned, and for lost benefits.

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The first paragraph of the decision sets the tone for this case:

[1]               For over 30 years the law in Canada is clear: a pregnancy should not lead to work-related disadvantages: Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 SCR 1219. Discrimination based on pregnancy undermines substantive equality along gendered lines. In this case, Mellissa LaFleche suffered a work-related disadvantage because she was pregnant. (…)

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Facts

The employee began her employment with the respondent in 2015. She occupied the position of “marketing manager” by December 2016. In May 2018, she went on maternity leave. The respondent hired a replacement employee to cover for the complainant during her leave.

On February 8, 2019, the employee met with the respondent’s new general manager regarding her return to work following her maternity leave. During the meeting, the parties agreed that the employee would return to work on July 2, 2019.

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The general manager gave evidence that he understood the meeting would be a "meet and greet" with perhaps some initial discussion about the employee’s return to work. Accordingly, he did not prepare for the meeting or have a finalized plan for her return. During the meeting, the general manager advised that the employee’s replacement would take on at least some of the marketing manager duties after the positive changes to the employer's marketing strategy since the complainant went on leave. The employee’s role on her return to work was undefined.

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The general manager told the employee that they would get back to her by the end of the next month to discuss her return to work position and duties, but no one reached out to her. The employee also did not reach out to her employer – in fact, she filed a human rights complaint just a few days after the meeting, although the employer did not learn of this until some months later.

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The employee took the employer's lack of follow-up as confirmation that her employment was being terminated, and she did not return to work as scheduled. Approximately six weeks after her return-to-work date, the employer wrote to the employee advising that it considered her to have abandoned her employment.

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Decision and Analysis

The British Columbia Human Rights Tribunal found that the employer removed the employee from her marketing manager position at the February 8, 2019 meeting, when the employer told the her that it was happy with the replacement’s performance.

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The Tribunal noted the employer’s failure to communicate with the employee about the changes it was making and what would happen upon her return to the workplace.  It emphasized that while an employee is on leave, the employer is obliged to consult with the employee about significant changes that will be made to their position, as the employee would participate in such a discussion if they were not on leave.

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Did the employer’s conduct adversely affect the employee, including whether it constructively dismissed her?

The Tribunal found that the employer’s acts and omissions adversely affected the employee in her employment, and that the employer constructively dismissed her.

Adverse Impact

The Tribunal found the adverse impact was the employer’s removal of the complainant from her managerial position to an unknown position.  The Tribunal accepted that the employee felt humiliated; grieved the position’s loss; felt distressed and nervous about money; and lost sleep, her appetite, a sense of security, and the ability to enjoy her maternity leave.

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The Tribunal rejected the employer’s argument that the employee “abandoned” her job, noting that the employer said it would get back to the employee by the end of March with possible return to work “scenarios” but did not do so.

Constructive Dismissal

Noting that “a constructive dismissal occurs where an employer has not formally terminated an employee’s employment, but the employer’s conduct is treated as a dismissal or termination at law,” the Tribunal concluded that its findings that the employer unilaterally determined the employee would not return to her role as marketing manager, and that the employee reasonably understood the employer was significantly altering her job duties, amounted to a dismissal from employment.

Were the employee’s sex and/or family status factors in any adverse impact?

The Tribunal found that the employee’s maternity leave was a factor in her removal from her role and in the constructive dismissal; had she not taken it, she would have continued in her role as marketing manager.  The Tribunal concluded, therefore, that the employer discriminated against the employee on the basis of sex and family status.

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Award Against Employer

The Tribunal awarded the employee $12,000 for injury to dignity and $66,625 in lost wages and benefits, rejecting the employer's arguments that she only lost wages because she chose not to follow up regarding her return to work, did not return to work as scheduled after her maternity leave, and did not apply for many, or appropriate, jobs (mitigation).

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The Tribunal also awarded loss of EI benefits for the employee’s subsequent post-termination pregnancy, reasoning that, through the loss of her job, she did not attain the number of insurable hours that she needed to qualify for maternity and parental leave benefits for her second child.

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The Tribunal did not, however, award continuing wage loss for the period when the employee decided to change careers to become a doula, and returned to school. (The Tribunal found the decision to become a doula was a complete career change, the financial consequences of which should not be the responsibility of the employer.)

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Finally, the Tribunal ordered the employer to pay a tax gross up for the increased tax liability Ms. LaFleche was expected to experience from the additional income she would have to report for the 2022 tax year due to the lost wages she was awarded.

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Takeaways

• Employers should carefully navigate discussions with employees who are on leave. Managers/HR professionals should prepare for these meetings and ensure they have notes and a record of the meetings and discussion. In this case, a meeting which the manager had understood as a "meet and greet", and which he did not prepare for, nonetheless included a discussion of the employee's role upon her return to work which left her with the impression that she would not be returning her to her previous position.

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• In general, absent bona fide business reasons that are completely unrelated to the employee going on leave, employers must return the employee to the same position they held before going on leave, or the employer must reach agreement with the employee regarding any material changes to their job or their compensation.

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• Employers should communicate clearly and consistently with employees, and to prepare for questions that may arise in the return to work context. We recommend these discussions happen before the end of a leave.

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• The mere fact a replacement employee is preferred does not override the absentee employee’s human rights.

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• If an employer is considering making any change to the role or employment terms of an employee who is on leave, we encourage them to seek the advice of experienced employment lawyers.

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• Employers should consider their current policies and ensure they have maternity (and other leaves) policies in place with appropriate management training.

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If you have any questions or need assistance revising your employment contracts or policies, please submit a Contact form.