Covid-19 Vaccination Policies: First...

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Over the last couple of weeks, several decisions were issued by arbitrators looking at man

Over the last couple of weeks, several decisions were issued by arbitrators looking at mandatory employer vaccination policies. It is clear from these decisions that arbitrators (and eventually Courts) will be considering vaccination policies on a highly contextual and case-by-case basis. We will quickly touch on important points from each decision in this article.

Ontario Arbitrator Upholds Employer’s Mandatory Vaccination Policy

The first decision we will look at is the November 9, 2021 decision from Paragon Protection Ltd. and UFCW Local 333, unreported. Here an Ontario arbitrator upheld an employer’s mandatory vaccination policy and dismissed a union grievance challenging the policy.

The employer was a security guard company who implemented a policy requiring all employees to be fully vaccinated by October 31, 2021, or they will face disciplinary measures up to and including termination. The Employer provided security guard services for approximately 450 sites, sending their personnel to the sites. Many of the sites already had mandatory vaccination policies excluding non-vaccinated individuals from accessing their site.

The Arbitrator found that the Employer’s vaccination policy was reasonable, enforceable and compliant with the Ontario Human Rights Code and the Occupational Health and Safety Act (“OHSA”). The policy was held to strike an appropriate balance between respecting the rights of employees who had not, or did not wish to be vaccinated, while respecting a safe workplace for the Employer’s staff, clients, and members of the public with whom the Employer’s security guards interacted.

The Arbitrator held that by introducing the policy, the Employer was fulfilling its obligations and responsibilities pursuant to s. 25(2)(h) of the OHSA to take “every precaution reasonable in the circumstances for the protection of a worker.” Moreover, the Arbitrator held that an employee’s subjective perceptions of the COVID-19 vaccine were insufficient grounds for an exemption.

In this case there was also language in the Collective Agreement that required employees assigned to a work site which had a vaccination requirement to receive such vaccination or be subject to a reassignment - this was a factor that helped the Employer.

Ontario Arbitrator Holds Unionized Employer’s Vaccination Policy Unreasonable

The second decision issued was between Electrical Safety Authority and Power Workers’ Union on November 11, 2021. Here the Arbitrator found that although it is not unreasonable to require employees to confirm their vaccination status, it was unreasonable to implement a policy where employees were disciplined, discharged or placed on an unpaid leave for failing to get fully vaccinated. The Arbitrator did note however that “that may change as the situation unfolds in the coming weeks and months.”

The Arbitrator also noted that in workplace settings where the risks are high (e.g. involving vulnerable populations) then “mandatory vaccination policies may not only be reasonable but may also be necessary and required to protect those vulnerable populations.”

The Electrical Safety Authority (Employer) had a voluntary vaccination and testing policy in place prior to October 5, 2021, which permitted employees who did not voluntarily disclose their vaccination status to be tested for COVID-19 on a regular basis. The Power Workers’ Union (Union) did not object to this policy. On October 5, 2021, the Employer introduced a mandatory vaccination policy (Policy) which required all staff to be fully vaccinated, subject to a valid exemption under the Human Rights Code, as of various dates depending on the employee’s role.

The Union asserted in this grievance that the Policy was an “unreasonable and a significant over-reaching exercise of management rights, which violates the Collective Agreement as well as employees’ privacy rights and right to bodily integrity.”

The Arbitrator stated, among other things, that there was no specific provision in the Collective Agreement which addressed vaccinations, the employer had not previously required employees to be vaccinated and there was no legislated requirement that the Employer’s employees be vaccinated.

The Arbitrator concluded that aspects of the Policy were unreasonable and the vaccinate or test policy that existed prior to October 5, 2021 was a reasonable alternative. If the number of unvaccinated employees “creates real problems” for the Employer’s business that “cannot be addressed in any other reasonable way, then the [Employer] may need to take other measures, including placing unvaccinated employees on administrative leave. If the [Union] objects to such measures, then the issue may be brought back before me on an expedited basis.”

BC Labour Relations Board Dismisses Union Application to Suspend Mandatory Policy

The latest decision, and to our knowledge first BC decision, was issued on November 19, 2021 by the BC Labour Relations Board (ICBC and BCHydro and Powertech and Canadian Office and Professional Employees’ Union, 2021 BCLRB 181). Here the Board denied the Union’s application for an interim order to suspend the mandatory vaccination policies issued by ICBC, BCHydro and Powertech employers affecting unionized employees.

The Union filed applications under the Labour Relations Code against the Employers and their mandatory vaccination policies alleging breach of obligations under section 54 of the Code which says:

Section 54 of the Labour Relations Code (the Code) is applicable “if an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies.”

The applications have not taken place yet, however the Union in this case applied for an interim order to suspend the policies until the applications can be fully decided on. The Board analyzed the applicable case law and tests for granting this type of interim application, and found that an interim decision on this issue is not necessary in this case. The Board held that the issue must be decided on by the arbitrator tasked with determining the merits of the Policies themselves, and “granting interim relief over an issue that was properly within the jurisdiction of an arbitrator in this case would improperly tilt the balance in favour of the Union.”

Takeaways

Our first takeaway is to keep in mind that these decisions so far are all based on unionized workplaces with Collective Agreements in place, and the two decisions made on the merits of the policies are Ontario-based. These Board decisions are very fact specific and contextual and different standards and tests are applied for unionized Employers governed by Collective Agreements versus private Employers.

These first few decisions illustrate the importance of factual context in these types of cases. What is permissible in one workplace for one group of workers may not be in another. What is not permissible now may be permissible at another time as conditions change. And the key takeaway should be to get legal advice specific to your workplace and your employees when developing, implementing, enforcing and updating your vaccination policy.

We will continue to see more decisions come out in British Columbia over the next weeks or months, so stay tuned and don’t hesitate to reach out to our Group with any questions in the meantime!

About KSW Lawyers and our Employment & Labour Group

KSW Lawyers (Kane Shannon Weiler LLP) was founded in 1973. 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 Lower Mainland. Our firm is well known among the various industries in which we operate for our professionalism, integrity and diligent representation. We offer services in a large variety of areas including: Business & Corporate, Employment & Labour, Tax, Real Estate, Litigation & Disputes, Wills & Estates and more.

At KSW Lawyers, the main goal of our Employment & Labour Group is to empower our clients with the knowledge to make the right decisions in their workplace. We do this by educating employers on their rights and obligations and tirelessly working with them to achieve the outcome that meets their objectives.

Why choose to work with us? We see all the angles. We are versatile. We are experienced. We are local.

Our Employment & Labour Group lawyers include: Chris Drinovz, Mike Weiler, Jesse Dunning, Junki Hong and Alejandra (Ale) Henao.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW Lawyers and Head of the Employment & Labour Group. Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, human rights & discrimination, and WorkSafeBC matters, including occupational health & safety.

Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce. In April 2021, Chris was recognized in the 2021 Canadian Legal Lexpert Directory as a Leading Lawyer to Watch in the practice area of employment law for employers and employees.

You can reach Chris by email at [email protected] or by calling 604-746-4357.

Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike works closely with Chris and specializes in labour law and helping unionized employers with Labour Relations and Union Advice. Mike has more than 35 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees.

You can reach Mike by email at [email protected].

Our Employment & Labour Law Group can assist your business with following services:

Advising on day-to-day employee relations; dismissal planning, imposition of discipline, promotions, health and insurance benefits, pension benefits, and human rights issues such as discrimination, harassment, and accommodation, and dealing with employees on medical leave;
Labour Relations and Union Advice for unionized Employers; strategies to avoid union organizing, and defending applications for certification, defending charges of unfair labour practices, applying for relief from picketing & strikes, collective bargaining & advice on collective agreement, representation at labour relations board & court applications along with grievances and arbitrations, labour disputes & injunctions, and general strategic planning;
Conducting and assisting with investigations into employee misconduct and guiding appropriate disciplinary actions, including just cause termination;
Preparing employment contracts for individual employees in any employment setting, including professional and executive-position employees;
Preparing enforceable independent contractor agreements for all non-employee relationships;
Preparing, advising on, and litigating restrictive covenant agreements such as non-competition and non-solicitation agreements including preparation of cease and desist letters and/or interlocutory injunctions against employees in breach;
Preparing workplace policies and employee manuals;
Defending all manner of claims by employees including provincial and federal Employment Standards claim, claims under the BC Human Rights Code or Federal Canadian Human Rights Act, and wrongful dismissal in the BC Supreme or Provincial Courts;
Assisting with any aspect of Employment Insurance or Canada Pension Plan disability matters including advice on appropriate responses to Service Canada regarding employee’s applying for employment insurance after dismissal;
Assisting with WorkSafeBC protested claims where the worker's claim is disputed at all levels including the Review Division and Workers Compensation Appeal Tribunal;
Handling discriminatory action complaints brought by employees under the Workers Compensation Act;
Assisting with workplace occupational health and safety matters and assessment matters, including appealing penalties imposed by WorkSafeBC; and

If you believe you may need assistance in any of these areas, please contact our team and we will be pleased to assist you.

Sincerely,

and KSW Lawyers

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at [email protected].

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Eight Month Car Dealer Employee Recei...

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On November 8, 2021, the BC Supreme Court released its decision in Yates v. Langley Motor

Article

Business

Employment Law and Human Rights

Author: Chris Drinovz, KSW Lawyers Employment & Labour Group ([email protected])

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On November 8, 2021, the BC Supreme Court released its decision in Yates v. Langley Motor Sport Center Ltd, 2021 BCSC 2175. This is another “COVID” dismissal decision that touches on several important points for employees and employers.

The plaintiff Ms. Yates was hired by Langley Hyundai as a Marketing Manager, earning $60,000 per year. After only 8.5 months of employment, she was temporarily laid off in March 2020 at the beginning of the COVID pandemic. While there were discussions of a possible recall, this did not materialize, and the layoff became permanent in August 2020, resulting in a termination without cause.

Ms. Yates sued the employer in Supreme Court, asking for 8 months pay in lieu of notice, plus aggravated and punitive damages for what she said was a breach of the employer’s duty of good faith. Specifically, she accused the employer of being untruthful about the prospects of returning to work during the layoff and failing to support her with a reference letter after the dismissal.

Notice Period

Since Ms. Yates did not have a written contract, the first issue before the court was the common law reasonable notice period. The employer submitted the notice period should be two to three months, while Ms. Yates said it should be 8 months. The Court settled in the middle at five months, which is still an extremely high notice period for such a short service employee. In coming to this assessment, the following points are noteworthy regarding each of the four “Bardal Factors”:

The Court still considered the employee’s “manager” title despite the fact she did not actually supervisor or manage employees; it was still relevant because she worked closely with the Vice President in a professional role;
The Court did not accept that the employee’s age (30 years old) was so young as to increase her notice period on the basis that her relative inexperience would make it harder to find a job; specifically, the judge noted “I do not consider Ms. Yates, at 30 years old, to have been a very youthful employee at the time of her termination” (para 23)
In considering the length of service, the Court examined the principles for short service employees set out in Saalfeld v. Absolute Software Corporation, 2009 BCCA 18. In this instance, Ms. Yates length of service did not justify a longer notice period than the typical two to three months that would normally be awarded (subject to below);
At paragraph 31, the Court noted that while the plaintiff had made a valiant effort to find comparable employment (37 unsuccessful job applications) she was unable to find work for 7 months. The Court inferred “a depressed job market arising from the COVID-19 pandemic” and concluded that alternative employment was not readily available. For this reason, the notice period was increased to five months for total damages of $25,000.

Deduction of CERB

The Court then considered whether the $10,000 in CERB benefits the plaintiff had received should be deducted from the award. After considering the law, including the recent case of Hogan, the judge concluded that CERB benefits were deductible, as the evidence did not establish that the employee would have to pay them back to the government as a consequence of the severance award (which is the case for regular Employment Insurance benefits, making them non-deductible). This makes the score 2 to 1 in the BC Supreme Court in favour of the deductibility of CERB. Interestingly, the Court invited the parties to return to court for a variation of the order if things turned out different (i.e. the employee had to repay CERB) in which case presumably the $10,000 would be ordered.

Aggravated & Punitive Damages

Finally, in declining to award aggravated or punitive damages, the Court said that while the employer could have been more proactive in communicating with the employee during leave, this did not rise to the level of a breach of the duty of good faith, or conduct deserving of the Court’s rebuke. While the employee gave testimony of suffering depression and even being suicidal after the termination, the Court found that this harm was not caused by the employer or the manner of the termination. To the contrary, the employer had indicated that it wished to recall Ms. Yates when it became able.

Even though it dismissed the claim for punitive damages, at paragraph 67, the Court gave a helpful summary of past cases where such awards were given in other wrongful dismissal cases:

fabricating allegations of serious misconduct or incompetence;
using bullying or intimidation tactics such as:
intimidating an employee into withdrawing or settling a wrongful dismissal suit,
threatening to bankrupt a plaintiff;
threatening a baseless counter suit; or
refusing to return a plaintiff’s belongings;
lying about other employees “signing off” without severance;
denying, on specious grounds, that a plaintiff is entitled to statutory pay;
pressuring a plaintiff to agree to settle a wrongful dismissal claim immediately; and
failing to pay statutory severance while knowing that this amount is payable – especially when the employer knows that the terminated employee is financially vulnerable.

Takeaways

My employer takeaways from this case are as follows:

• Ensure you have written employment contracts for all employees with a properly drafted termination clause; this could have avoided the entire lawsuit here.

• If you have employees on a temporary layoff, be sure to keep in regular communication with them and ensure all communications regarding a possible return to work are transparent and truthful to avoid allegations of bad faith

• If possible, support a terminated employee with a truthful and accurate reference letter if requested

• Notice periods for short service employees continue to trend upwards; be mindful that even your least senior employees can make a wrongful dismissal claim that results in significant liability

• Judges will take notice of the depressed job market during COVID and this may increase notice periods substantially (it was doubled in this case)

• It appears that CERB benefits continue to be deductible from wrongful dismissal damages, so long as the government does not require that they be repaid when severance is received for the same time period.

Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact Chris Drinovz or Mike Weiler .

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, the Vice President of Greater Langley Chamber of Commerce and a Director for Surrey Cares. Chris can be reached at [email protected].

Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike works closely with Chris and specializes in labour law and helping unionized employers with Labour Relations and Union Advice. Mike has more than 44 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees.

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BC Human Rights Update November 2021

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When a Human Rights complaint is filed an employer respondent has the option of bringing a

Article

Personal

Employment Law & Human Rights

Author: Mike Weiler, KSW Lawyers Employment & Labour Group

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Interesting developments in the Human Rights area that our readers should be aware of.

BC HUMAN RIGHTS TRIBUNAL GOING OUT OF THE SUMMARY DISMISSAL BUSINESS

When a Human Rights complaint is filed an employer respondent has the option of bringing an Application to Dismiss the Complaint by way of a summary application under section 27 of the Code. The Tribunal is empowered to dismiss the complaint at an early stage if for example it determines there is no reasonable prospect of success. This important gatekeeper function often eliminates the need for a lengthy and expensive oral hearing on the merits. Employers are remarkably successful in having unmeritorious complaints dismissed under this provision.

However the Tribunal is facing unprecedented delays in processing complaints and has a large number of outstanding applications to dismiss. These applications can take well over a year to process in many cases. As a result on November 8th 2021 the Tribunal issued a practice direction headed “Emergency Pause on New Applications to Dismiss”. As a result the Tribunal will not accept new applications to dismiss under section 27 effective immediately and this pause will remain in effect until further notice.

The Tribunal notes that “given the recent significant increase in case volume and the resulting backlog, the Tribunal is beginning a review of its process, including seeking public input, and expects to replace this practice direction in early 2022.”

Here is a link to their update.

“FAMILY STATUS” LAW IN BC BEING CHALLENGED

One of the protected grounds of discrimination under the BC Human Rights Code is “family status”. Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of Canada for the past 15 years. This ground of discrimination has been given a fairly restrictive interpretation by our Court of Appeal in the seminal decision of HSA v Campbell River and North Island Transition Society, 2004 BCCA 260. Since then many have tried to challenge this more stringent test to match the rest of Canada. Then in 2019, the BC Court of Appeal confirmed the stringent test from Campbell River as follows:

Envirocon Environment Services, ULC v. Suen, 2019 BCCA 46

Now the test is being challenged again in a judicial review of a 2020 BC Human Rights Tribunal decision (Gibralter Mines Ltd. v. Harvey, 2021 BCSC 927). Gibralter Mines Ltd. (the employer) brought an application to dismiss the complaint made against them based on family status by an employee returning from maternity leave who requested a change in hours of work. The employer relied on the Campbell River decision to advance their argument that there was no discrimination based on family status in this case as there was no change made in a term or condition of employment. That application was dismissed by the Tribunal. Gibralter then has brought a judicial review of that decision to the BC Supreme Court, and the hearing occurred at the end of October over the course of 3 days. The court was asked to consider if Campbell River is still law and how it should be interpreted. One of the key arguments the Tribunal made against the employer and the test is that Step 1 of Campbell River (the need for a change or term of employment) is not a requirement and was never intended to be a step of the test.

This is a very important judicial review application for employers. If the court allows an expanded definition of family status then employers will likely be faced with many more complaints based on this ground since no change in terms of employment will be needed to prove discrimination.

Judgment was reserved at the conclusion of the hearing, so we will report back on this decision as soon as it is available, likely in 3-6 months – stay tuned.

BC HUMAN RIGHTS TRIBUNAL PROVIDES UPDATED GUIDANCE ON VACCINATION POLICIES

In July 2021 the Human Rights Commissioner issued a policy guidance paper on the approach to be taken in respect of proof of vaccination during the COVID 19 pandemic. That policy was updated by the Commissioner on October 14th 2021. Here is a link to the policy.

We covered recent arbitration decisions on the enforceability of mandatory vaccination policies in our most recent articles.

Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace policy, please contact Mike Weiler or Chris Drinovz.

Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike works closely with Chris and specializes in labour law and helping unionized employers with Labour Relations and Union Advice. Mike has more than 44 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees. You can reach Mike by email at [email protected].

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Travel Company "Frustrated" by Court'...

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An important wrongful dismissal decision was just released on October 5, 2021 by the BC Su

Article

Business

Employment Law and Human Rights

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

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An important wrongful dismissal decision was just released on October 5, 2021 by the BC Supreme Court that covers many of the pandemic issues we have been speculating on over the last 18 months: effect of layoffs and terminations when the pandemic hit (specifically in the travel industry), frustration of contract due to the pandemic and lack of business for the employer, increased notice periods for shorter term managerial employees, and deductibility of CERB payments.

In this article we summarize the key points from the decision. In Verigen v. Ensemble Travel Ltd, 2021 BCSC 1934, the BC Supreme Court found a business development director for a travel company was entitled to damages reflecting a 5 month notice period without deduction after 18 months of employment.

Layoffs

The employee had consented to a temporary layoff before being expressly terminated (5 month layoff); the Court found that the date of termination was the date of the express termination and not the date the temporary layoff began – this was distinguishable from the previous decision in Hogan where the court found that the employee had not consented to the temporary layoff and there was a constructive dismissal, effective the date of the first layoff.

Termination Clause Not Enforceable

The court rejected the employer’s argument that the termination clause contained in an employment manual that was signed well after the employee started was binding. The court found there was a lack of consideration and the original offer letter (without restrictions) applies:

[36] I am not persuaded that anything said in Rosas undermines the authority of Holland and Nowak in this particular context, however. On the contrary, I am satisfied that the governing law continues to be as stated in those earlier cases, for the reasons provided, more recently still, by Verhoeven J. in Matijczak v. Homewood Health Inc., 2021 BCSC 1658, as follows:

[30] While the law relating to the requirement for consideration in order to support amendments to an agreement may be in a state of flux, it appears that the law in BC continues to require consideration where an employer seeks to impose an amended employment agreement with significant modifications, detrimental to the employee: Singh v. Empire Life Insurance Co., 2002 BCCA 452 at para. 12. In Quach v. Mitrux Services Ltd. 2020 BCCA 25 at paras. 12-13, the Court of Appeal declined to interfere with the trial judge’s reliance on Singh, in the context of an employment case, notwithstanding the court’s decision in Rosas v. Toca, 2018 BCCA 191. In Ontario, see also Braiden v. La-Z-Boy Canada Ltd., 2008 ONCA 464 at para. 57.

Frustration of Contract Due to the Covid Pandemic

The court rejected the employer’s argument that the defence of frustration should relieve its liability for terminating the plaintiff despite the fact that the employer’s travel business was devastated by the pandemic:

[58] I agree with ETL that it is the common law test for frustration (rather than the statutory test under s. 65(1)(d) of the ESA) that applies in this context. The leading authorities setting out that test were conveniently summarised by Warren J. in Wilkie v. Jeong, 2017 BCSC 2131, as follows:

[15] The purpose of the doctrine of frustration is to relieve a contracting party from its bargain by bringing the contract to an end. The doctrine applies "when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes 'a thing radically different from that which was undertaken by the contract'": Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 at para. 53, quoting Peter Kiewit Sons' Co. v. Eakins Construction Ltd., [1960] S.C.R. 361, per Judson J., at 368, in turn quoting Davis Contractors Ltd. v. Fareham Urban District Council, [1956] A.C. 696 H.L. (Eng.), at 729.

[16] In KBK No. 138 Ventures Ltd. v. Canada Safeway Limited, 2000 BCCA 295 at para. 13, Justice Braidwood for the Court referred to the test for frustration as the "radical change in the obligation" test articulated by the House of Lords in Davis Contractors where Lord Radcliffe stated at 728–29:

So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognizes that without the fault of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.

There is, however, no uncertainty as to the materials upon which the court must proceed. "The data for decision are, on the one hand, the terms and construction of the contract, read in the light of the then existing circumstances, and on the other hand the events which have occurred" … In the nature of things there is often no room for any elaborate inquiry. The court must act upon a general impression of what its rule requires. It is for that reason that special importance is necessarily attached to the occurrence of any unexpected event that, as it were, changes the face of things. But, even so, it is not hardship or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.

[17] In KBK, at para. 14, Braidwood J.A. also expressly approved of Justice Sigurdson's summary of the test for frustration in Folia v. Trelinski (1997), 14 R.P.R. (3d) 5 (B.C.S.C.) at para. 18:

In order to find that the contract at issue has been frustrated the following criteria would have to be satisfied. The event in question must have occurred after the formation of the contract and cannot be self-induced. The contract must, as a result, be totally different from what the parties had intended. This difference must take into account the distinction between complete fruitlessness and mere inconvenience. The disruption must be permanent, not temporary or transient. The change must totally affect the nature, meaning, purpose, effect and consequences of the contract so far as concerns either or both parties. Finally, the act or event that brought about such radical change must not have been foreseeable.

[59] The issue in Wilkie was whether the imposition of additional purchase tax on a prospective purchaser of real property frustrated the contract of purchase and sale. In answering that question in the negative, Warren J. canvassed various authorities holding that a purchaser’s inability to perform due to a lack of adequate funds will not generally justify a finding of frustration. She summarised the relevant principles as follows:

[38] That a lack of money to perform does not, generally, give rise to frustration is not surprising because, as noted, frustration arises from a supervening event that results in performance becoming a thing radically different from that which was undertaken. While a lack of money affects a party's ability to perform an obligation, it does not normally alter the nature or purpose of the obligation itself.

[60] So too here, the collapse in the travel market goes to ETL’s “ability to perform”, rather than “the nature of the obligation itself.” This case is unlike the CRT decisions relied upon by ETL, where the very subject matter of the contract had been lost due to discrete, pandemic-related events. Although much of the consumer demand driving the business on which ETL and its members depend has abated, at least for the time being, not all of it has, and then not permanently. Moreover, although ETL chose to terminate a large part of its work force in the summer of 2020, at least some positions have been preserved and a recently-opened vacancy has been filled. ETL chose to relinquish Ms. Verigen’s branch of the business with a view to cutting operating costs so that it could better weather an ongoing storm. The fact that the pandemic had admittedly not brought about a frustration of the contract as of July 2020 makes it implausible for ETL to maintain that the contract had become frustrated only a few weeks later.

[61] For those reasons, I have concluded that Ms. Verigen’s employment contract was not frustrated by the pandemic and that she is therefore entitled to damages for wrongful dismissal.

Notice Period

The court assessed notice at 5 months – the employee had 18 months total service; this was in between the defence range (2-3 months) and the employee’s request for 9 months.

Duty of Good Faith and Layoffs

The plaintiff argued breach of the duty of good faith given a series of successive temporary layoffs which prevented her from looking for work; the court found the employer’s intention was genuine and there was nothing nefarious about this – however if the employer had intended for the layoff to be permanent but misled the plaintiff about returning, it may be a different story.

Reduction of Damages to Match Reduced Salaries

The employer argued that damages should be reduced by 20% because other employees who were kept on had their salaries reduced – the court rejected this argument because it could not be said that the same would have occurred with the plaintiff.

[79] For that proposition, Ms. Verigen relies on Hogan at para. 94, where Gerow J. held that “if the Plaintiff had been given regular working notice, he would have been entitled to his regular salary and benefits.” But in the following paragraph, Gerow J. refused to use the plaintiff’s previous year’s (2019) income for that purpose because it included a bonus and the evidence was that the defendant paid no bonuses in 2020 as a result of the economic conditions caused by the pandemic (at para. 95). This suggests that it is appropriate for the Court to engage in at least some prospective analysis in assessing what Ms. Verigen would actually have earned had she continued working through the notice period.

[80] Ms. Verigen also relies on Hunsley v. Canadian Energy Services LP, 2020 ABQB 724, which I have found to be more helpful. In that case, the defendant, Canadian Energy Services LP (“CES”) sought, like ETL, to reduce the damages payable to the plaintiff so as to reflect reductions in salary later imposed on the remaining employees during the notice period. The Court refused to do so, for the following reasons:

[41] CES’s evidence is that as of April 21, 2020 its employees “accepted” a salary reduction, which for Ms. Hunsley’s pay grade would have been 12.5 percent; and as of April 1, 2020, the RRSP contribution program was discontinued. CES argues, therefore, that Ms. Hunsley’s compensation package would have been reduced if she had continued working and her damages must reflect the same adjustment.

[42] In my view, Ms. Hunsley’s damages must be based on the compensation she would have received without taking into account these deductions. The salary rollback and elimination of RRSP contributions occurred in the same month and together amounted to 18.5 percent of Ms. Hunsley’s base salary. A unilateral change of that magnitude without notice would likely amount to a fundamental breach constituting constructive dismissal.

[43] It is understandable that employees whose employment was continuing might “accept” such a change, to use CES’s euphemistic language. It is much less likely that someone working out a notice period would take the same view. It would be wrong in principle for me to assume an employer could reduce its damages by unilateral post-dismissal changes in the compensation package.

[44] Therefore, Ms. Hunsley’s damages will be based on the base salary and RRSP employee contributions at the levels existing when her employment was terminated.

[81] I find that reasoning persuasive. In this case, however, the full 20% reduction had already come into effect by the time Ms. Verigen was terminated, so it was not a “post-dismissal change in the compensation package” in the same sense. Nevertheless, Ms. Verigen was terminated on August 24, 2020 after having been laid off for the preceding five months. The salary reduction was imposed in that year only on active employees, not those like Ms. Verigen who had been laid off and were now being terminated. Whatever the rationale for reducing the salary of ETL’s remaining active employees may have been, it cannot have applied to someone like Ms. Verigen, who was, like Ms. Hunsley, merely deemed to be serving out a notional notice period.

[82] I am therefore not persuaded that it would be appropriate to reduce Ms. Verigen’s damages on that ground and I refuse to do so.

CERB Deductibility

CERB was not deductible because the plaintiff had only received $10,000 in CERB during the temporary layoff period and not after the actual termination (shows the importance of the actual termination date).

Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace policy, please contact Chris Drinovz at [email protected].

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BC Restaurant Liable for $30,000 in D...

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The Employee was hired as a server for Buono Osteria, a restaurant in a small town on...

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Business

Employment Law and Human Rights

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

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Human rights complaints and awards against employers have been increasing over the last couple of years. This very recent decision from the BC Human Rights Tribunal shows that the implications of willfully ignoring an employee’s pronouns or gender identity can be costly for an employer (Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137).

In this 42-page decision, the Tribunal found that the employee, Jessie Nelson, a non‐binary, gender fluid, transgender person who uses they/them pronouns, was terminated in retaliation when they complained of discrimination from their employer and a colleague. The Tribunal found that the Employer terminated them unfairly for asking managers and co-workers to call them by their preferred pronouns, and ordered the Employer to pay $30,000 in damages.

BACKGROUND - WORKPLACE DISCRIMINATION

The Employee was hired as a server for Buono Osteria, a restaurant in a small town on BC’s Sunshine Coast, in May 2019, and worked there for about four weeks. At the time of hiring, the general manager (one of the Respondents named in the complaint) was aware that the Employee used they/them pronouns, and was supportive of them and assisted with training staff on proper use of pronouns.

The bar manager (another Respondent), however, began to refer to the Employee by nicknames such as “pinky” – reference to their pink hair, “sweetheart”, “sweetie” and “honey.” When he used pronouns, the bar manager referred to the Employee as she/her. The Employee notified the Employer they found this very hurtful, and experienced the nicknames as offensive, degrading, and minimizing.

The Employer talked to the bar manager regarding this behaviour and asked him to use the correct pronouns or simply address the Employee by their name instead, but the behaviour didn’t change and got worse. Due to management inaction, the Employee attempted to address this conduct directly with the bar manager in a heated conversation that resulted in the Employee slapping the bar manager on the back. A few days later, the Employer terminated the Employee without cause or notice, during their probation period.

ANALYSIS

The issue in this case was exacerbated as management was notified of the deliberate misgendering and did not respond in a reasonable or appropriate manner. In fact, the employee was terminated, partially for “coming on too strong” and being “militant” on the issue of trans inclusion. The Employer felt the Employee didn’t “fit in” and couldn’t work with the bar manager especially after the physical incident, so they made the decision to keep the bar manager and terminate the Employee.

The Employee alleged, and Tribunal agreed, that the bar manager’s conduct towards them, and the employer’s response, amounts to discrimination in employment based on their gender identity and expression, in violation of s. 13 of the Human Rights Code [Code]. The Tribunal had to consider the following issues:

Did the bar manager’s conduct towards the Employee in the workplace amount to discrimination?
Was the employer’s response reasonable and appropriate?
Was the Employee’s gender identity and expression a factor in the termination of their employment?

Conduct of the Bar Manager

All employees have the right to a workplace free of discrimination. Trans employees are entitled to recognition of, and respect for, their gender identity and expression - this is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment: BC Human Rights Tribunal v. Schrenk, 2017 SCC 62 [Schrenk].

The Tribunal found that the bar manager’s conduct amounted to discrimination. It went further to explain the importance of the use of they/them pronouns, and the effect and consequences that not using them has on a trans, non-binary person.

Paragraph 82 explains further:

Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non‐binary, or other non‐cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. As Jessie Nelson explained in this hearing, their pronouns are “fundamental to me feeling like I exist”. When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.

At paragraph 83 and 84:

I appreciate, as the respondents point out, that for many people the concept of gender‐ neutral pronouns is a new one. They are working to undo the “habits of a lifetime” and, despite best intentions, will make mistakes. Unfortunately, this learning is done at the expense of trans and non‐binary people, who continue to endure the harm of being misgendered.

Human rights law is concerned not with intentions, but with impacts: Code, s. 2; Schrenk at para. 88 (per Abella J, concurring). This does not mean, however, that intention is irrelevant. A person’s intention can go a long way towards mitigating or exacerbating the harm caused by misgendering. Where a person is genuinely trying their best, and acknowledges and corrects their mistakes, the harm will be reduced. This is evidenced by Jessie Nelson’s response to mistakes made by Mr. Kingsberry, who proactively took steps to correct himself and make the workplace more inclusive. These mistakes, though they may have been painful, did not lead them to file a human rights complaint. As they explained in this hearing, “I don’t expect perfection around my pronouns; I never have.” On the other hand, where a person is callous or careless about pronouns or – worse – deliberately misgenders a person, the harm will be magnified. This was the case with Mr. Gobelle.

The Use of Nicknames in Work Settings

At paragraph 86, the Tribunal found that nicknames such as “sweetie”, “sweetheart”, and “honey” have no place in a professional setting. “When used by a man towards a woman, the effect is infantilizing and patronising, and reinforces gendered hierarchies” (at para. 116). In this case, there was an added layer of harm by the implicit messaging that they were regarded and treated as a woman. This undermined, erased, and degraded their gender identity in their place of work. This was discriminatory.

The Employer's Response

The Tribunal found that management was aware of the discriminatory conduct, and as the employer, it was obliged to respond.

The Tribunal summarized the employer’s obligations in these circumstances as follows:

… employers have obligations under the Code to respond reasonably and appropriately to complaints of discrimination... This includes a duty to investigate.

Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination.... In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”...

Some factors the Tribunal may consider are whether the employer and persons charged with addressing discrimination have a proper understanding of discrimination, whether the employer treated the allegations seriously and acted “sensitively”, and whether the complaint was resolved in a manner that ensured a healthy work environment…

Here, the employer’s response fell short of what was reasonable and appropriate and sowed the seeds for the altercation that would lead to the termination. The Employer had a policy on harassment and inclusion and made attempts at supporting and ensuring the Employee was properly gendered at work. However, the managers did not respond to the Employee’s complaints with any sense of urgency and did not appreciate how serious the complaints were.

At para 95 and 96, the Tribunal explained that once the Employee raised their complaint a second time, the discrimination issue should’ve taken immediate and urgent precedence over any other performance management issues the Employer was addressing with the bar manager:

This was not a conflict between two employees who simply held different opinions or did not like each other. This was a matter of discrimination. Given that the employer had accepted that Jessie Nelson’s complaints were valid, all that remained was to correct Mr. Gobelle’s behaviour. This was the employer’s responsibility and not Jessie Nelson’s. The employer is responsible for ensuring a healthy work environment: Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at para. 15.

Termination

To prove that the termination of their employment violated the Code, the Employee must show that their gender identity and expression was one factor in that decision. It does not need to be the only or overriding factor.

Here the Employer argued that the two non-discriminatory reasons for terminating the Employee were: insubordination (choosing to confront the bar manager directly) and insulting and hitting him on the back during the confrontation.

The Tribunal disagreed with the Employer and found that the Employee’s gender identity was at least a factor in their termination. It was apparent to the Tribunal that the Employee was terminated in connection with their efforts to address discrimination.

The Tribunal also addressed the Employer’s submissions about the Employee being in the probationary period when terminated, and confirmed that it was irrelevant as parties cannot contract out of their duties under the Human Rights Code: “While an employer may terminate a probationary employee without cause and without notice, they cannot terminate them for any reason connected to the personal characteristics protected under s. 13.”

Where an employee is terminated in the context of a discriminatory work environment, careful attention must be paid to ensure there is no connection between the termination and the discriminatory environment. The Tribunal explained that in many cases, including this case, “[w]here employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code.”

Under such conditions, people may react in any number of ways. When a person complains or speaks up about discrimination, there is a well‐known propensity to label them as “problematic or difficult to deal with.”

The Tribunal also rejected the Employer’s argument that the bar manager’s verbal conduct was less serious than physical conduct. The Tribunal held the discriminating verbal conduct of the bar manager had a much greater impact on the Employee than the impact that the slap on the back had on the bar manager (although the Employee was wrong to slap him).

Complaint Against Individual Respondents

The Tribunal found that the Employee was discriminated against in their employment, and the corporate respondent (Buono Osteria) was liable for the conduct of its employees and directors. The Tribunal found that the Employer, as well as the two directors and the bar manager were all individually liable for discrimination as well.

Award for Injury to Dignity, Feelings and Self-Respect

A violation of a person’s human rights is a violation of their dignity. The Tribunal awards damages to compensate a complainant for injury to their dignity, feelings, and self‐respect. The purpose of these awards is compensatory, and not punitive. In exercising this discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant.

The Tribunal awarded a total of $30,000, which is what the Employee asked for. The bar manager was individually liable for $10,000, and the Employer (two Directors) were jointly liable for $20,000.

In determining the award, the Tribunal found that, although the length of employment was short, the discrimination was ongoing and escalating, culminating in the loss of employment. The Tribunal contemplated three aspects of the Employee’s vulnerability: 1) the context of their workplace; 2) their inherent marginalization as a transgender person; and 3) their recent move to a new, smaller community, which would impact potential future employment.

At page 39 of the decision, the Tribunal made an important note that Employers should be aware of – highlighting the upward trend of damages awarded in cases of discrimination in employment, which now range between $15,000 and $40,000:

The parties have provided me with a number of cases in which the Tribunal found discrimination based on sex or gender identity and awarded damages in amounts ranging from $4,000 to $22,000. Many of those cases are now dated, and the quantum of damages does not reflect the upward trend in these awards: Araniva v. RSY Contracting, 2019 BCHRT 97 at para. 145.

In that regard, more recent cases involving discriminatory harassment and/or the termination of a person’s employment have attracted damage awards in the range of $15,000 to $40,000: see eg. Benton; Araniva; Sales Associate; Loiselle v. Windward Software Inc. (No. 3), 2021 BCHRT 80; Ban v. MacMillan, 2021 BCHRT 74.

Order for Pronoun Policy and Mandatory Training

At the Employee’s request, the Tribunal also ordered that the Employer:

Add a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns
Implement mandatory training, of no less than two hours, for all staff and managers about human rights in the workplace

TAKEAWAYS

This case represents a costly lesson for the employer and serves as a warning to all others — ensure you are being careful and respectful with your employees, their gender-identity and preferred pronouns.

Some specific key points to remember are:

All employees have the right to a workplace free of discrimination.
Human rights law is concerned not with intentions, but with impacts.
The use of nicknames such as “sweetie”, “sweetheart”, and “honey” have no place in a professional setting.
Under the Code, employers have an obligation to respond reasonably and appropriately to discriminatory complaints ... This includes a duty to investigate.
Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination.
In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”.
Having a policy on harassment and inclusion is not enough.
To prove that the termination of their employment violated the Code, the Employee must show that their gender identity and expression (or other protected characteristic) was one factor in that decision. It does not need to be the only or overriding factor.
Whether or not the terminated employee is in their probationary period is irrelevant in these cases, as parties cannot contract out of their duties under the Human Rights Code.
Employers as well as individual directors or employees can be found liable for discrimination (and damages).
When awarding damages to compensate a complainant for injury to their dignity, feelings, and self‐respect, the BCHRT considers the following factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant.
The Tribunal made an important note that Employers should be aware of, highlighting the upward trend of damages awarded in cases of discrimination in employment, which now range between $15,000 and $40,000.

Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

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Employer Scores Rare Win in Wrongful...

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The courts have not been particularly kind to employers in wrongful dismissal suits the...

Article

Business

Employment Law and Human Rights

Author: Mike Weiler, KSW Lawyers Employment & Labour Group ([email protected])

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The courts have not been particularly kind to employers in wrongful dismissal suits these days. More and more decisions find employers not only liable for damage based on significant notice periods, but also other damage claims such as aggravated or even punitive damages. And in some cases employers are being ordered to pay enhanced costs equal to the actual legal fees the employee pays her lawyer. So it was refreshing to see a decision that was almost 100% in favour of the employer on key issues in dispute. And in fact the employer was awarded costs even though the Plaintiff was successful in getting judgment.

In Leanne LeClair v Pater Pharma Inc dba Shoppers Drug Mart (“SDM”), 2021 BCSC 1904 the Plaintiff aged 41 was terminated by the Defendant without cause and without notice (although she was paid her Employment Standards severance pay). She was employed as a retail manager of the Defendant for 9 years and 10 months and earned $82,000 a year.

The Plaintiff pursued every possible claim she could. Unfortunately for her neither the evidence nor the law supported her position. Here are some highlights.

1. COURT REJECTS SOME EVIDENCE TENDERED BY PLAINTIFF

The case proceeded by way of Summary Trial based primarily on affidavits and discovery evidence. It was conducted by MS Teams.

The Plaintiff attempted to introduce several pieces of evidence. She tried to read into evidence her own discovery transcript. She relied on the statement of her lawyer in a letter to the Defendant claiming the costs of benefits. She also tried to introduce letters that were found to be inadmissible due to settlement privilege. The Defendant objected to this evidence. The law is very clear on these points. For example the court noted a party cannot rely on its own discovery evidence—only a party adverse in interest can tender that evidence.

The court rejected the parts of the evidence objected to by the Defendant. Not a good start to the Plaintiff’s case.

2. LENGTH OF EMPLOYMENT

An employee’s length of service is one of the most important factors considered by a court when it determines the length of notice in a wrongful dismissal. The Plaintiff was employed by the franchisee which was a separate legal entity. She tried to argue that her entire service with other SDM stores should be included. She alleged that the stores she previously worked for were “common employers” so when she was terminated by the Defendant she should be considered to be an employee of 18 years not the approximately 10 years she was with the Defendant.

The court held that her length of service was 9 years 10 months as argued by the Defendant. The Defendant was the employer not SDM and there was no evidence to suggest that the Defendant was not independent and distinct from the other franchises the Plaintiff worked for. The court relied on the uncontroverted evidence of the Defendant that it had no corporate relationship to the over 100 SDM stores including those the Plaintiff had worked at. The evidence simply did not “support a finding that SDM had a measure of control over Ms. LeClair that would be necessary under the common employer doctrine.”

The court also found that in any event the evidence did not support a finding that the Plaintiff’s employment was “continuous”.

The decision provides a good review of the “common employer” doctrine especially as it applies to franchisees.

3. REASONABLE NOTICE

The Court examined the 4 “Bardal” tests to determine reasonable notice. The Plaintiff argued she was entitled to 16—18 months’ notice based on what she claimed was 18 years total continuous service. The Defendant argued that the range of notice was 9—12 months.

The court found in favour of the Defendant and held that the notice period was 10 months. The court noted that at 41 the Plaintiff had many years before retirement and had marketable skills. It also relied on the 4th Bardal factor noting there were numerous comparable jobs available during the notice period. Given the employee shortages in BC today this factor is becoming more important in reducing the notice period despite the continuing effects of COVID.

Accordingly after deducting what she was paid in severance the court held that subject to other adjustments her damages were $55,690 a far cry from what she claimed at $125,000.

4. BENEFITS AND BONUS

The Plaintiff claimed she was entitled to a bonus in addition to lost salary. The court noted that where the payment of the bonus is discretionary and there is doubt as to whether the employee would have received a bonus during the notice period, the court must assess whether the bonus was integral to the employee’s compensation. The court reviewed the relevant law and then turned to the Plaintiff’s evidence. The evidence fell woefully short of establishing a right to a bonus. While there were documents that showed bonus calculations in past years, for some reason the Plaintiff simply attached the documents without explanation. The court noted that “in a summary trial application, it is not sufficient to merely attach documents to an affidavit without explanation as to what those documents are.” [59]. Therefore the claim for a bonus was dismissed as the Plaintiff failed to prove she was entitled to a bonus.

Similarly the Plaintiff’s claim in respect of benefits was dismissed again because her evidence failed to establish the key elements of such a claim. She relied on a letter from her lawyer in response to a demand from discovery that “Ms. Leclair advises that she is currently paying $68/month for extended benefits through Blue Cross…”[62]. The court states another practice rule of evidence that in a summary trial “a party cannot establish a disputed fact by statements of counsel”[para 63] Why no further evidence was led is not clear.

5. MITIGATION

In February 2020 the Plaintiff was offered a similar job with Canadian Tire but at a substantially lower starting salary of $58,000. But after accepting the job she decided to accept a lower paying minimum wage job at Air Canada because she wanted to get the travel perks. Unfortunately the Air Canada job did not pan out due to COVID. The court held that failure to accept the Canadian Tire job was a failure to mitigate. Although this only resulted in a one month reduction of the damage award the decision is significant for employers as the court reviews the law of mitigation. The court held:

“An offer of employment need not be made at the same salary that the employee earned before they were terminated; it may be necessary for a terminated employee to accept a position that would pay less in the short-run…

In my view, a salary being offered at approximately $52,000 plus benefits for a supervisory position and an opportunity for further promotion is a reasonably comparable position that she have accepted. As in Goetz it is sometimes necessary to accept a position that would pay less in the short run.” [81]

6. AGGRAVATED, PUNITIVE AND BREACH OF GOOD FAITH

Courts will allow aggravated damages for mental stress if the employer has failed to act in good faith in the manner of dismissal. While the diagnosis of a psychological condition is not required “the plaintiff must prove, medically or otherwise, that she suffered mental distress beyond the ordinary upset that accompanies termination of employment.” [88] The courts require an evidentiary foundation for such an award.

Punitive damages are awarded in rare cases where the plaintiff can prove conduct that is “harsh, vindictive, reprehensible and malicious” that is ‘extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.”[89]

The court dismissed both these claims.

Once again the Plaintiff led no evidence that she personally suffered such injury so that alone undermined her claim for aggravated damages. Further and just as importantly there was no evidence the Defendant breached its duty of good faith in the manner it conducted the termination. The Plaintiff argued that the Defendant gave a negative reference letter and thus she was entitled to aggravated damages. The court held that there is no obligation to provide a reference for a departing employee and in any event this was not a case where the provision of a reference was used in an inappropriate manner [such as the court found in the Vernon decision]

Finally the court dismissed the punitive damage claim. The Plaintiff argued that the Defendant had acted improperly in the conduct of the litigation. The court noted the Defendant had not argued just cause nor did it make those allegations as part of its defense. The court held that the delay in the litigation and the motions the Defendant had to bring were totally proper and in fact it had been successful in both motions. It appears that if anybody could have been criticized about how they acted during the litigation it would be the Plaintiff.

The court summarized its decision as follows:

“In summary, there is no evidence to support an award of aggravated or punitive damages in the circumstances of this case.”[114]

7. COSTS

Finally the court made its position clear when it came to an order for costs. Normally “costs follow the event” so here the Plaintiff was awarded judgment albeit far below what she claimed and what in fact the Defendant essentially agreed she was entitled to. But here the court awarded the Defendant its costs based on Scale “B” of the Tariff because it had been substantially successful. While that decision might be open to challenge, the Defendant asked to make submissions on costs. It may well be there was an Offer to Settle that would have supported an Order in the Defendant’s favour in any event.

TAKEAWAYS

I thought this case was worth reporting in some detail because it reflects the dilemma employers face when confronted with a Plaintiff that makes outrageous claims without legal or factual foundation. Many employers simply do not want the effort and costs of litigation so they settle beyond what their counsel advises a court would likely award.

So it is refreshing to see an employer win so handily in a case like this. It might make other employees’ counsel pause before taking a case all the way to trial. An employee runs the risk of having an adverse decision like this form a negative part of their record of employment when applying for other jobs as these court decisions are published.

We strongly urge our clients to consider the merits of their case carefully and base their settlement discussions on that opinion. In many cases such as this mediation is an effective tool to achieve settlement and avoid incurring significant legal fees.

Get in Touch!

Our Employment & Labour Group has been working with businesses to develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Mike Weiler at [email protected].

Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike specializes in labour law and helping unionized employers, and has more than 40 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees.

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Covid-19 Resources for Employers in BC

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KSW Lawyers (Kane Shannon Weiler LLP) was founded in 1973. Today, we maintain office locat

Article

Business

Corporate Services

\Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group

Last Update: September 12, 2021

‍

KSW Lawyers Resources for Employers

Your guide to rolling out a vaccination policy – materials from our Virtual Webinar in June available here:

KSW articles from our Employer Resources Portal

Article summarizing recent decisions BC Human Rights Tribunal Dismisses Complaints Alleging Discrimination due to Vaccine Pass
Article on B.C.’s Proof of Vaccination Requirement
Article on Vaccine Mandates and Workplace Vaccination Policies - FAQs
Article by Chris Drinovz: Can an Employer require Employees to get the Covid-19 Vaccine?

Employment & Labour Newsletters

Sign up to receive future updates and articles here. Relevant Past Newsletters:

Other Covid-19 Resources for Employers

B.C. Government

Information on the current B.C. Provincial Health Officer’s orders, notices and guidance is available on the official B.C. Government website here.
B.C. Government News Release (September 7 2021) regarding the Vaccine Card and list of settings where it is required is available here.

British Columbia’s Commissioner of Human Rights

Policy paper entitled A human rights approach to proof of vaccination during the COVID-19 pandemic - BC's Office of the Human Rights Commissioner (bchumanrights.ca)

WorkSafeBC Resources

WorkSafeBC’s Communicable disease prevention: A guide for employers available here.
WorkSafeBC information for Employers on Vaccination and the Workplace, including information on work-related claims due to vaccination adverse reactions, is available here.
WorkSafeBC information for Employers on Claims relating to Covid-19 is available here. Covid-19 Claims Data by Industry available here.

About KSW Lawyers and our Employment & Labour Group

Why choose to work with us? We see all the angles. We are versatile. We are experienced. We are local.

Our Employment & Labour Group lawyers include: Chris Drinovz, Mike Weiler, Jesse Dunning, Junki Hong and Alejandra (Ale) Henao.

You can reach Chris by email at [email protected] or by calling 604-746-4357.

You can reach Mike by email at [email protected].

Our Employment & Labour Law Group can assist your business with following services:

Advising on day-to-day employee relations; dismissal planning, imposition of discipline, promotions, health and insurance benefits, pension benefits, and human rights issues such as discrimination, harassment, and accommodation, and dealing with employees on medical leave;
Labour Relations and Union Advice for unionized Employers; strategies to avoid union organizing, and defending applications for certification, defending charges of unfair labour practices, applying for relief from picketing & strikes, collective bargaining & advice on collective agreement, representation at labour relations board & court applications along with grievances and arbitrations, labour disputes & injunctions, and general strategic planning;
Conducting and assisting with investigations into employee misconduct and guiding appropriate disciplinary actions, including just cause termination;
Preparing employment contracts for individual employees in any employment setting, including professional and executive-position employees;
Preparing enforceable independent contractor agreements for all non-employee relationships;
Preparing, advising on, and litigating restrictive covenant agreements such as non-competition and non-solicitation agreements including preparation of cease and desist letters and/or interlocutory injunctions against employees in breach;
Preparing workplace policies and employee manuals;
Defending all manner of claims by employees including provincial and federal Employment Standards claim, claims under the BC Human Rights Code or Federal Canadian Human Rights Act, and wrongful dismissal in the BC Supreme or Provincial Courts;
Assisting with any aspect of Employment Insurance or Canada Pension Plan disability matters including advice on appropriate responses to Service Canada regarding employee’s applying for employment insurance after dismissal;
Assisting with WorkSafeBC protested claims where the worker's claim is disputed at all levels including the Review Division and Workers Compensation Appeal Tribunal;
Handling discriminatory action complaints brought by employees under the Workers Compensation Act;
Assisting with workplace occupational health and safety matters and assessment matters, including appealing penalties imposed by WorkSafeBC; and

If you believe you may need assistance in any of these areas, please contact our team and we will be pleased to assist you.

Sincerely,

and KSW Lawyers

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B.C.’s Proof of Vaccination Requirement

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Due to the prevalence of the Delta variant and recent rise in COVID-19 case numbers tha...

Article

Personal

Employment Law and Human Rights

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

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Due to the prevalence of the Delta variant and recent rise in COVID-19 case numbers that is being described as the 4th wave of the pandemic in Canada, the federal and provincial governments are considering various vaccination mandates and encouraging all employers to implement workplace vaccination strategies in consultation with their labour law advisors.

B.C.’s Proof of Vaccination Requirement

On August 23, 2021, the B.C. Government announced a new order from the provincial health officer that will require individuals aged 12 and older to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated at least seven days after receiving both doses.

This is the updated full list of settings where proof of vaccination will be required based on the B.C. Government's September 7, 2021 News Release:

indoor ticketed sporting events
indoor concerts, theatre, dance and symphony events
licensed restaurants, and those offering table service (indoor and outdoor dining)
pubs, bars and lounges (indoor and outdoor dining)
night clubs, casinos, movie theatres
fitness centres/gyms/adult sports (indoor)
indoor group exercise activities
organized indoor events with 50 or more people (e.g., wedding receptions, organized parties, conferences, workshops)
discretionary organized indoor group recreational classes and activities

On September 10, 2021, two official Orders were released, the Food and Liquor Serving Premises Order, and the Gatherings and Events Order.

The following are some important points to note:

surprisingly no medical, religious or other exemptions will be provided; however, the Orders allow for requests for reconsideration of the order based on a few limited grounds covered below;
retail stores, grocery stores and other essential services are not contemplated by this announcement;
the order does not apply to various settings outlined in paragraph L to the Preamble (pages 2-3 of the Order), including but not limited to:
workers at a workplace when engaged in their work activities, including staff meetings; work camps;
employment related training;
places of worship such as churches, synagogues or mosques;
health or social services provided to people in need, such as warming or cooling centres;
drug and alcohol support group meetings;
court sittings wherever they occur;
the Orders are time limited through to Jan. 31, 2022, subject to possible extension;
the measures set out above do not apply to K-12 schools (public and independent), but they do apply to large indoor events (theatre, concerts) attended by parents, family and/or the public.

GATHERINGS AND EVENTS

The Gatherings and Events Orders includes the following definitions of note:

“event” means a seated in-person gathering in a place with seating;
“participant” means a person who attends an event, but does not include an organizer, event staff member, official, performer, player, athlete, officiant, or any other person who is acting in an official or service capacity;
“place” means a venue, other than a private residence, and includes a hotel ballroom or conference room, a banquet hall, conference hall, auditorium, recreation centre, theatre, movie theatre, multi-movie theatre complex, casino, work-out gym, exercise or dance facility or studio, recreational facility arena, stadium, vacation accommodation, tent or a premises as defined in the Food and Liquor Serving Premises Order;

The Order describes various requirements for ourside events, and inside events, including capacity, dancing restrictions, sanitation, seating etc, which can be reviewed in their entirety at pages 4-7 of the Order.

Organizers are required to obtain proof of vaccination from participants for Inside Events as follows:

“event” means:

a. a gathering of more than 50 participants in an inside place for social, entertainment, dancing, choral, musical, recreational, gambling, arts or crafts, or business and includes a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party;
b. a gathering of participants in an inside place for the purpose of an adult sports activity, or an exercise, fitness or dance activity or class;
c. but does not include a program for children or youth, or a meeting of a council, board, or trust committee of a local authority as defined under the Community Charter, the Local Government Act or the Islands Trust Act, or a school board, at which members of the public attend in person;

As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated. The following apply:

An organizer must obtain proof in the form of a vaccine card that a participant has received two doses of vaccine
An organizer must not permit a participant who has not provided the organizer with proof in the form of a vaccine card of having received onr (or two starting Oct. 24) doses of vaccine to enter or remain a place for the purpose of an event
Proof of vaccination that has to be provided includes photo identification and electronic proof or a printed copy of an electronic proof that the owner is vaccinated (issued by the government in the form of a QR code, accessible through the “BC Services Card” electronic online platform and showing the name
Despite the requirements in section 3 (a) to (d), between September 13, 2021 and September 26, 2021, a participant may provide the paper record of vaccination which the participant received at the time of vaccination from the person administering the vaccination, and photo identification, as proof that the participant has received at least one dose of vaccine
An operator must not scan the QR code on a vaccine card, or paper record of vaccination, with any tool other than a BC Vaccine Card Verifier App.
an organizer must not retain proof of vaccination or identification provided by a participant, or use it for any purpose other than to confirm that a participant has been vaccinated, as required by this Order, except
with the written consent of a participant, an organizer may keep a record of the fact that the participant has provided proof of being vaccinated in compliance with this Part until this Order expires or is repealed, and the organizer may rely upon this record to satisfy the requirements in this Part with respect to future participation by the participant in an event at the same place.
This Order expires at 12:01 A.M. on January 31, 2022.
Relevant businesses are required under section 42 of the Public Health Act to comply with this Order. Failure to comply with this Order is an offence under section 99 (1) (k) of the Public Health Act. Enforcement action can be taken under Part 4, Division 6 of the Public Health Act.

Requests for Reconsideration

The Order provides:

Pursuant to section 43 of the Public Health Act, you may request a medical health officer to reconsider this Order if you:
(a) have additional relevant information that was not reasonably available to the me or another health officer when the order was issued or varied,
(b) have a proposal that was not presented to me or another health officer when the order was issued or varied but, if implemented, would
(i) meet the objective of the order, and
(ii) be suitable as the basis of a written agreement under section 38 [may make written agreements], or
(c) require more time to comply with the order.

A request for reconsideration of this Order on the basis of a medical contraindication made by a person to whom the Order applies must include a signed and dated statement from a medical practitioner, based upon a current assessment, that the health of the person would be seriously jeopardized if the person were to receive a first or second dose of vaccine, and a signed and dated copy of each portion of the person’s health record relevant to this statement.

A request under section 43 may be submitted to the Provincial Health Officer at [email protected] with the subject line “Request for Reconsideration about Proof of Vaccination”.

FOOD AND LIQUOR SERVING PREMISES ORDER

This Order applies to owners and operators, as well as patrons of restaurants with table service, cafes, food primary or liquor primary establishments, including pubs, bars, lounges and nightclubs, liquor manufacturing facilities that have tasting rooms with seating or private clubs. The Order describes restrictions for operating and seating, as well as Proof of Vaccination similar to Gathering and Events Order.

Paragraph M clarifies premises it does not apply to, including food or liquor serving premises which are located in airports or at BC Ferries terminals or on BC ferries, designated onsite liquor retail and dedicated sampling room areas without seating attached to a liquor manufacturing facility, a person providing or collecting take-out food, and more.

Impact of the Proof of Vaccination Order on Employers and Workplaces

The proof of vaccination requirement only applies to patrons attending the events/settings and not to the employees working at a discretionary business/event. However, from our first-hand experience with our business clients, many individual businesses are putting in place vaccination policies for employees as well as contractors and anyone else entering their workplace, encouraged by the recent events and Orders.

This can affect your workplace and employees if:

you or your staff work closely to provide services to any other Employers who are covered by the Order or have their own Workplace Vaccination Policy, you might face difficulties providing services if your staff is not fully vaccinated;
if your employees are required to attend outside networking meetings or other business events, they might be unable to attend if unvaccinated.

Other Notable Recent Mandates

B.C. mandates COVID-19 vaccination for all long-term care, assisted living workers

On August 12, 2021, B.C.'s Provincial Health Officer Dr. Bonnie Henry announced that all workers in long-term care and assisted living facilities in BC will be required to be vaccinated against Covid-19 by October 12, 2021. The mandatory vaccination applies to staff, as well as volunteers and personal service providers entering long-term care settings. Until Oct. 12, all unvaccinated staff are required to wear personal protective equipment (PPE) and be tested regularly for COVID-19.

Mandatory Vaccinations for the Federal Public Service and Federally Regulated Sectors

This was followed on August 13, 2021 by the Federal Government announcing mandatory vaccinations will be required as early as the end of September for the Federal Public Service and Federally Regulated Sectors. The announcement included the following important statements:

The Government of Canada today announced its intent to require vaccination as early as the end of September across the federal public service. Vaccinations are our best line of defence and for those few who are unable to be vaccinated, accommodation or alternative measures, such as testing and screening, may be determined in each situation, to protect broader public health by reducing the risk of COVID-19.

In addition, as soon as possible in the fall and no later than the end of October, the Government of Canada will require employees in the federally regulated air, rail, and marine transportation sectors to be vaccinated. The vaccination requirement will also extend to certain travellers. This includes all commercial air travellers, passengers on interprovincial trains, and passengers on large marine vessels with overnight accommodations, such as cruise ships.

(...) Further, the Government of Canada expects that Crown corporations and other employers in the federally regulated sector will also require vaccination for their employees. The government will work with these employers to ensure this result.

The Government of Canada is also calling on all organizations beyond the federally regulated sector to put in place their own vaccination strategies, drawing on the advice and guidance available from public health authorities and the Canadian Centre for Occupational Health and Safety.

Get in Touch!

Our Employment & Labour Group has been working with businesses to develop and draft the right policy for their workplace and are here to help! Get in touch today.

CLICK HERE to get a free copy of our webinar recording and presentation materials from our June webinar Your Guide to Rolling Out a Vaccination Policy with Chris Drinovz and senior lawyer Mike Weiler.

FAQs by Employers Regarding Vaccination Policies

We are not aware of this specific statement. However, Dr. Henry did advise that there will be no exemptions to the B.C. mandate and passport at this time, during this period of increased risk.

As an employer, you do need to provide protection and accommodation to employees who are protected under the British Columbia Human Rights Code, such as for a medical or sincere religious belief.

Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 69.

That being said, there have been no confirmed major religions to my knowledge that hold this belief. One driver for testing sincerity is the fact that no major organized religion objects to the vaccines, and Roman Catholic and other Christian, Jewish and Muslim leaders have advised followers to get the shots. Pope Francis went so far as to say that getting vaccinated was “the moral choice because it is about your life but also the lives of others.”

How can you know if your employee’s religious belief is sincere? For some of our clients who have implemented mandatory vaccination at the workplace, we created a Request for Accommodation Form. In order to qualify for the exemption, employees are required to fill out the form which includes providing a written and signed statement objecting to immunization due to sincere and genuine religious beliefs which prohibit immunization, in which case supporting documents may be required. It also mentions the employer can request further documentation such as a letter from an authorized representative of the church, temple, religious institution, etc. that you attend. Contact Chris Drinovz if you'd like to implement a Policy and request for accommodation forms.

Recent Relevant Case:

In the one BC Human Rights Tribunal case we summarised here, an employee objected to wearing a mask arguing it was against his religious beliefs to cover his face from God. https://www.ksw.bc.ca/employee-opinion-on-mask-wearing-not-protected/

At para 11, the Tribunal Member set out the reasons for his finding that the complaints set out cannot be a contravention of the Code:

These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19.

(…)

The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Workers’ complaints, in essence, are about his disagreement with the reasons for the mask‐wearing requirement set out in the Orders.

Yes, it certainly is, employers should prohibit any form of harassment, discipline, reprisal, intimidation, or retaliation based on an employee's or contractor’s decision to get or not get vaccinated. Employees that discriminate against or bully a fellow employee or contractor because of their decision to vaccinate or not to vaccinate can be subject to discipline, up to and including termination for cause. A lot of employers have a Respectful Workplace Policy in place, which would may prohibit any form of harassment or discrimination at the workplace, including related to one's vaccination status and outline a complaint procedure for dealing with this. For our clients who implemented a Vaccination Policy, we have included language on this specifically in the Policy.

If an employee refuses to follow a workplace policy, an employer can discipline them according to the policy, including up to termination of employment. This is subject to the Human Rights Code, so it is important to obtain the reason why the employee is not following the policy and assess whether there is a duty to accommodate.

Lay offs are tricky - absent seasonal workers, the right to lay-off in a written contract, or the employee’s clear agreement, a temporary layoff (even for one day) can be treated by the employee as a constructive dismissal under the common law, triggering the employer’s notice or severance pay obligations either under the employment contract or the common law.

The British Columbia Employment Standards Act provides that after 13 weeks in any 20 week period, any temporary layoff would automatically become a termination under the Act unless the employer has applied for and received a variance from the Director. However, the Courts have held that this does NOT prevent employees from exercising their common law rights to claim a constructive dismissal if the layoff is less than 13 weeks. We covered this topic in an article available here.

Please note there are different rules for unionized employers which will depend on the language of the collective agreement. There may also be exceptions for non-union employers, particularly in the health care or federal sector if any of the Public Health Orders or federal government mandates require your employee to be vaccinated in order to perform their duties.

In any circumstances it is important to obtain professional advice before laying off an employee.

Yes, you can. Just be mindful that you still cannot discriminate against individuals with traits protected by the British Columbia Human Rights Code, such as medical condition or sincere religious belief preventing the protected individual from getting the vaccine.

We have previously done a seminar on the “Art of Hiring” where we address human rights considerations when hiring new employees. If you would like access to these materials, please contact Chris Drinovz.

Yes, the cases are below – some of them are not directly regarding vaccination, they address masks, however it’s the same principle of what is a protected ground under the Human Rights Code specifically religion or medical/disability arguments:

Political Belief Argument against new Proof of Vaccine Status requirement

Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120

The Complainant filed this complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID‐19 Vaccination and getting our basic human rights and freedoms stripped from us.” The Complainant has filed her complaint on the basis of the protected characteristic of political belief in the area of employment. The Tribunal Chair dismissed the complaint and said that while she accepts a belief opposing government rules regarding vaccination could be a political belief, it only protects a person from adverse impacts in their workplace and does not exempt them from obeying provincial health orders. She said the complainant alleges no facts that her employment has been affected. “The Code does not permit a direct challenge to a public health order based merely on disagreement with it.”

Medical Condition Argument against new Proof of Vaccine Status requirement

Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119

Decision issued on September 9, 2021 where the Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer for British Columbia, alleging discrimination in the area of services on the basis of physical
disability under s. 8 of the Human Rights Code. The Complainant said that the proof of vaccination requirements are discriminatory. The Tribunal determined that it will not proceed with the complaint because it does
not set out facts that could violate the Code. The complainant said he has asthma and does not want services curtailed because of an “experimental vaccine.” While asthma counts as a physical disability, protected under the B.C. Human Rights Code, the complainant has not yet experienced an actual adverse impact. The Tribunal added that even if the complainant was denied a service because he is not vaccinated against COVID-19, he still has to establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from getting the shot. “An ideological opposition to or distrust of the vaccine would not be enough."

Religious Objections to Mask Use

In The Worker v. The District Managers, 2021 BCHRT 41, the Tribunal found that an objection to wearing a mask that is based on what was ultimately found to be personal preference and opinion is not protected by the Code. We summarized the decision in an article here.

Medical Exemptions for Retail Customers

In The Customer v. The Store, 2021 BCHRT 39, the Tribunal found that without establishing a disability protected by the BC Human Rights Code (the “Code”) the complainant could not seek redress from the Tribunal for being refused service without a mask.

Rael v Cartwright Jewelers and another, 2021 BCHRT 106

The complainant, a woman with an alleged breathing issue, was denied entry to the respondent’s store when she declined to wear a mask.

Christiansen v MedRay Imaging, 2021 BCHRT 107

The complainant, a man with a broken foot, walked into a clinic to obtain an x-ray in July 2020. Upon arrival, the un-masked complainant was asked to wear a mask in accordance with the clinic’s policy, was informed that a mask could be obtained at the neighbouring pharmacy, and was further advised that he would not be served without one.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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BC Human Rights Tribunal Dismisses Co...

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The BC Provincial Health Officer's Order requiring proof of vaccination for access to c...

Article

Business

Employment Law and Human Rights

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

The BC Provincial Health Officer's Order requiring proof of vaccination for access to certain discretionary events and businesses resulted in a large number of inquiries and complaints filed with the BC Human Rights Tribunal alleging discrimination in connection with the pending vaccination requirements. This issue has emerged as one of considerable public interest and concern and in light of the volume of these types of complaints and public interest in this issue, the Tribunal published a couple of recent screening decisions summarized below.

Complainant v Dr. Bonnie Henry, 2021 BCHRT 119

This is the Tribunal's first screening decision issued on September 9, 2021 where the Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer for British Columbia, alleging discrimination in the area of services on the basis of physical disability under s. 8 of the Human Rights Code.

The Complainant said that the proof of vaccination requirements are discriminatory. The Tribunal determined that it would not proceed with the complaint because the complaint did not set out facts that could violate the Code.

The complainant said he had asthma and pneumonia as a child, and did not want services curtailed because of an “experimental vaccine.”

The test for establishing discrimination is found at paragraph 8 of the decision:

a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33 [Moore]. emphasis added

When applying the test to the facts of the current case, the Tribunal Chair found that while asthma counts as a physical disability, protected under the B.C. Human Rights Code, the complainant had not yet experienced an actual adverse impact as of the date of the complaint.

Without an actual adverse impact related to a service, facility or accommodation customarily available to the public, this Complaint could not constitute a breach of the Code. (para 11)

The Tribunal went further and added that even if the complainant was denied a service because he was not vaccinated against COVID-19, he still had to establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from getting the shot. “An ideological opposition to or distrust of the vaccine would not be enough.”

Complainant obo Class of Persons v John Horgan, 2021 BCHRT 120

This is the second screening decision released by the Tribunal on September 9, 2021. In this case, the Complainant filed this complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID‐19 Vaccination and getting our basic human rights and freedoms stripped from us.”

The Complainant filed this complaint under s. 13 of the Human Rights Code on the basis of the protected characteristic of political belief (political belief is only a ground of discrimination in relation to employment). The Tribunal Chair dismissed the complaint and said that while it accepts a belief opposing government rules regarding vaccination could be a political belief, it only protects a person from adverse impacts in their workplace and does not exempt them from obeying provincial health orders.

The Complainant filed this complaint on their own behalf as well as others as described above. The complaint said:

The British Columbia government has made a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms. The government has no right to tell us what goes into our bodies or threatening us into getting this vaccination by taking away our basic rights and freedoms. This is segregation, discrimination, and derogatory, and has no place in modern society.

The same test was applied here from the Moore Supreme Court of Canada decision:

To establish discrimination contrary to the Code, a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact

The Tribunal Chair found that political belief includes “public discourse on matters of public interest which involves or would require action at a governmental level”: Fraser v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2019 BCHRT 140 at para. 59; Bratzer v. Victoria Police Department, 2016 BCHRT 50 at para. 271 [Bratzer].

In this case, at paragraph 11 the Tribunal found:

I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs. For example, in Bratzer, the Tribunal found that the employer had discriminated against the complainant because of his advocacy in connection with drug laws. He still had to follow those laws despite his opposition to them, but his opposition to them could not be the basis for adverse treatment in his employment, subject to a bona fide occupational requirement.

"Without allegations of an actual adverse impact experienced by the proposed class in their employment, this Complaint could not establish a breach of the Code. Accordingly, it will not proceed and is dismissed."

Employer Takeaways

This decision is a concerning one for Employers. The Tribunal Chair’s statement at paragraph 11 seems to suggest that employees who experience an adverse impact in the workplace due to their view regarding Public Health Orders (and therefore vaccination) can make a legitimate complaint under the BC Human Rights Code on the basis of political belief. Will this open the floodgates?

BC is one of a few provinces in Canada where political belief is a protected ground under the Human Rights Code under Discrimination in Employment. The Tribunal has never provided a definition of “political belief” however it has given the term a broad and liberal definition and found that it is not confined only to partisan political beliefs. That being said, it has also clarified that political belief is not unlimited; comments and beliefs in relation to human resources, labour relations policy, or workplace conditions may not fall within its ambit.

It will be very interesting to see how the Tribunal rules on these issues in the future. For now Employers must continue to be mindful of human rights considerations when making decisions regarding COVID-19 policies and employee discipline around vaccination issues. As the applicable law and policies are evolving so rapidly, it is imperative to continue to seek professional advice on these important issues.

Our Employment & Labour Group has been working with businesses to develop and draft the right policy for their workplace and are here to help! Get in touch today.

FAQs by Employers Regarding Vaccination Policies

We are not aware of this specific statement. However, Dr. Henry did advise that there will be no exemptions to the B.C. mandate and passport at this time, during this period of increased risk.

As an employer, you do need to provide protection and accommodation to employees who are protected under the British Columbia Human Rights Code, such as for a medical or sincere religious belief.

Recent Relevant Case:

At para 11, the Tribunal Member set out the reasons for his finding that the complaints set out cannot be a contravention of the Code:

(…)

In any circumstances it is important to obtain professional advice before laying off an employee.

Political Belief Argument against new Proof of Vaccine Status requirement

Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120

Medical Condition Argument against new Proof of Vaccine Status requirement

Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119

Religious Objections to Mask Use

Medical Exemptions for Retail Customers

Rael v Cartwright Jewelers and another, 2021 BCHRT 106

The complainant, a woman with an alleged breathing issue, was denied entry to the respondent’s store when she declined to wear a mask.

Christiansen v MedRay Imaging, 2021 BCHRT 107

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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