Firm

In British Columbia, It is relatively common for dismissed employees to pursue claims agai

Author: Jesse Dunning, Lawyer

The Perils Of Parallel Proceedings: Issue Estoppel In The Employment Context

In British Columbia, It is relatively common for dismissed employees to pursue claims against employers in a variety of venues, including the Employment Standards Branch, WorkSafeBC, the Civil Resolutions Tribunal, the Human Rights Tribunal, and both the Provincial and Supreme Courts of British Columbia. Frequently these proceedings are started at the same time and run parallel to each other.

What both employees and employers do not always appreciate, however, is that findings made in one venue can critically impact findings in other venues, through the doctrine of issue estoppel.

The potential impact of issue estoppel is amply demonstrated in the recent decision of the Human Rights Tribunal in Christensen v Save-A-Lot Holdings Corp. (No. 2), 2021 BCHRT 91.

Christensen involved a case where the complainants were employees at a car dealership who, along with their father (the manager of the dealership), had been terminated by their employer. The termination led to a number of proceedings, including a complaint before the Employment Standards Branch, a complaint before the Human Rights Tribunal, and an action in Supreme Court of BC by the employer against the complainants and their parents. At the time the HRT decision was rendered, the complainants’ claims had succeeded before the ESB and been unsuccessfully appeal by the employer at the Employment Standards Tribunal, in a decision indexed as Save-A-Lot Holdings Corp., 2020 BCEST 140. The HRT claim and fraud action were still unresolved.

The ESB had made a number of findings as to the complainants’ employment status, termination and rate-of-pay which the complainants argued were binding on the HRT. A key finding before the ESB was that the complainants were employees who had been terminated without cause. The employer wished to take the position before the HRT--contrary to the findings of the ESB/EST--that the complainants were not bona fide employees.

In Christensen, the HRT chose to apply the doctrine of issue estoppel, foreclosing the employer from advancing the defense they wished to argue at the hearing, and demonstrating the significant impact that findings in one venue can have over parallel proceedings through the doctrine of issue estoppel.

The Doctrine of Issue Estoppel

Issue estoppel is a legal doctrine whereby a party is prevented or ‘estopped’ from arguing in one proceeding against a finding made in an earlier proceeding.

At its heart, issue estoppel is concerned with preserving the integrity of the judicial system by preventing inconsistent findings between judicial and administrative bodies when they are adjudicating similar matters between the same parties. The principle justification is that if multiple judicial or quasi-judicial bodies consider the same matter and come to opposing conclusions, it creates an obvious contradiction that both harms confidence in the judicial process and works significant injustice against the parties to the proceedings.

In the leading case of Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada set out three questions that must be answered in the affirmative in order for the doctrine of issue estoppel to apply:

Was the same question decided?
Was the judicial decision said to create the estoppel final?
Were the parties the same in both proceedings?

Even if these conditions are met, issue estoppel is not automatically applied to the proceeding, as a tribunal or court can decline to apply issue estoppel in appropriate circumstances. The Court in Danyluk found that the following non-exhaustive list of factors should be considered when applying the doctrine of issue estoppel to findings made by administrative bodies:

The wording of the statue from which the power to issue the administrative order derives;
the purpose of the legislation;
the availability of an appeal;
the safeguards available to the parties in the administrative procedure;
the expertise of the administrative decision maker;
the circumstances giving rise to the prior administrative proceedings; and
Potential injustice.

The key and overriding factor is potential injustice. In Christensen, the HRT found that it would be unjust to force the complainants to re-litigate their employment status when the Respondents had already unsuccessfully argued the issue before the ESB/EST, and where the Respondents had failed to raise the issue before the HRT prior to the application.

In practice, the most common reason that a court will find injustice in applying issue estoppel is where the process leading to the decision in the prior proceeding is fundamentally flawed, or where the stakes and the purpose of the processes in question diverge significantly.

In Danyluk, the Court found that issue estoppel should not apply, as the administrative tribunal in that case had failed to give the plaintiff an opportunity to meet the employer’s case.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada declined to apply issue estoppel, finding that the purposes, processes and stakes of a complaint under the Police Services Act were so different from those of the plaintiff’s civil action that it would be unjust to apply issue estoppel.

Takeaways

Both employees and employers should understand that findings made before a tribunal or court can have a significant impact on parallel proceedings. In order to reduce the risk of unwelcome findings, parties should ensure that their positions are consistent between proceedings, and carefully consider the impact of failing to fully advance their case in each proceeding. On the other hand, parties should be aware of the significant benefits to a favourable finding in an earlier proceeding, and consider early applications on the applicability of issue estoppel, as success on such an application may simplify or entirely resolve their dispute, saving both time and legal fees.

Note to Readers: This is not legal advice. If you are looking for legal advice or have any questions regarding how this holiday affects employers and employees in BC, please contact the Employment & Labour Group.

Jesse Dunning is a dedicated litigator, whose areas of practice include employment/human rights law, estate litigation, and general litigation. As part of his employment law practice, Jesse assists both businesses and employees with terminations, employment contracts, discrimination complaints and all manner of other employment issues. If you have any questions or wish to learn more about Jesse, click here.

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New Federal Statutory Holiday: Nation...

On June 3, 2021, Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretatio...

Author: Siobhán Rempel, Articling Student

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On June 3, 2021, Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation), SC 2021, c 11 received Royal Assent. This legislation establishes a new federal statutory holiday in Canada. Here’s everything you need to know.

National Day for Truth and Reconciliation

The implementation of a National Day for Truth and Reconciliation responds to the May 2021 discovery of 215 remains of children buried in an unmarked grave at the Kamloops Indian Residential School in Tk’emlupsemc territory (Kamloops, BC). This discovery has triggered the search for unmarked graves across the country.

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In past years, September 30th has been recognized as Orange Shirt Day. The movement was started by Phyllis Webstad, who had her orange shirt taken away from her when she arrived at residential school at the age of six.

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From 1883 to 1996, the Government of Canada mandated residential schools by way of the Indian Act, RSC, 1985, c I-5. The compulsory attendance of over 150,000 First Nations, Inuit, and Métis children at residential schools across the country was enforced by the Government of Canada throughout this period. The Truth and Reconciliation Commission of Canada estimates that thousands of children died while attending residential school.

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The purpose of this legislation is to respond to the Truth and Reconciliation Commission of Canada’s call to action number 80 by creating a holiday called the National Day for Truth and Reconciliation, which seeks to honour First Nations, Inuit and Métis Survivors and their families and communities and to ensure that public commemoration of their history and the legacy of residential schools remains a vital component of the reconciliation process.

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The legislation will make amendments to the Bills of Exchange Act, RSC, 1985, c B-4 (subparagraph 42(a)(i)), the Interpretation Act, RSC, 1985, c I-21 (subsection 35(1)), and the Canada Labour Code, RSC, 1985, c L-2 (section 166) to include the National Day for Truth and Reconciliation along with the other federally recognized statutory holidays.

Which employees will be entitled to the holiday?

There has been some uncertainty circulating regarding which businesses and employees will be affected by the National Day for Truth and Reconciliation this year. September 30th is a federal statutory holiday. The Government of Canada’s collective agreements stipulate that employees are entitled to “one additional day when proclaimed by an act of Parliament as a national holiday” which has occurred in this case. Accordingly, this means that federal employees and workers in federally regulated workplaces will be granted a paid day off.

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Since this article was first written, BC introduced amendments to the Employment Standards Act adding the National Day for Truth and Reconciliation, a provincial statutory holiday. Learn more in our article here.

What services in BC will be impacted by the holiday?

While September 30th is not a provincial statutory holiday, many provincial public-sector employees will be recognizing the holiday this year.

*Update* Since this article was first written, BC introduced amendments to the Employment Standards Act adding the National Day for Truth and Reconciliation, a provincial statutory holiday. Learn more in our article here.

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Following the Federal Government’s announcement in June, the Government of BC recently released a statement. Murray Rankin, Minister of Indigenous Relations and Reconciliation, and Selina Robinson, Minister of Finance stated the following:

The national holiday will be observed this Sept. 30 by federal employees and workers in federally regulated workplaces. We have advised provincial public-sector employers to honour this day and in recognition of the obligations in the vast majority of collective agreements. Many public services will remain open but may be operating at reduced levels. However, most schools, post-secondary institutions, some health sector workplaces, and Crown corporations will be closed.

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Additionally, all Supreme Court registries in BC will be closed. This means that all Supreme Court civil, family, and criminal hearings set to be heard on September 30, 2021 have been cancelled.

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Many public sector collective agreements use similar language as stipulated above to allow public sector employees to observe “any other holiday proclaimed as a holiday by the Federal, Provincial, or Municipal Government for the locality in which an employee is working shall also be a paid holiday” .

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However, most private sector employees were not entitled to a paid day off, as it did not yet appear as a statutory holiday in any BC legislation. Some private businesses chose to give their employees the day off regardless.

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What happens when September 30th falls on a weekend?

Section 193(2) of the Canada Labour Code states that should the holiday fall on either a Saturday or Sunday, employees are entitled to a holiday with pay on the working day immediately preceding or following the general holiday (Friday or Monday).
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Note: The topic of residential schools may be triggering to some readers. A National Residential School Crisis Line can be accessed online or by telephone at 1-866-925-4419.
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Siobhán Rempel joined KSW Lawyers (Kane Shannon Weiler LLP) as a summer student in 2021. She is entering her last semester of law at Thompson Rivers University in the Fall of 2021 and will be returning to KSW in 2022 to complete her articles. She has a keen interest in employment, human rights, and public law issues.

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Important Changes to B.C. Employment...

British Columbia’s Employment Standards Amendment Act, or Bill 8, received Royal Assent on

Author: Alejandra Henao, KSW Lawyers Employment & Labour Group ([email protected])

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British Columbia’s Employment Standards Amendment Act, or Bill 8, received Royal Assent on May 30, 2019. The bill proposed gradual implementation of changes, some of which came into force on August 15, 2021, and others on October 15, 2021. Bill 8 was influenced by the 2018 British Columbia Law Institute report.

In this article we will briefly discuss the August amendments, which apply to investigations, complaints, and determinations. The October changes will affect the rules and processes around hiring children.

Investigations

Recent changes in the Act enforce the Director’s powers outlining that they can investigate compliance with the Act “at any time or for any reason.” As background, the Branch has the legal authority to check if employers are following the Act or Regulations. Section 76 of the Act allows a Branch Director to conduct an investigation to ensure compliance with the Act and regulations. The policy says that a Director is not limited to reacting to complaints and can take whatever initiatives are considered advisable to obtain compliance with the Act. This gives the Branch a wide range of powers to investigate employers. The Branch can receive an initial complaint from an employee and investigate their concerns and that of other employees. A Director can ask the employer to provide copies of other employee’s contracts to see if they too, contravene the Act, for example.

Another important change to the Act involves the use of alternative dispute resolution (ADR) during investigations. ADR are alternate ways to resolve legal disputes, including but not limited to negotiation, mediation, collaborative practice, and arbitration. The Director can rely on these proceedings to help the party or parties reach an agreement or comply with the Act. The Director can now call upon a neutral party to hear and mediate the case.

Further, although a Director is not required to hold an oral hearing, they are now required to draft then to serve a summary of their investigations and findings on the parties involved. The parties in receipt of the Director’s summary will have an opportunity to respond to its contents. This step provides procedural fairness for everyone involved before a decision on an employment investigation is issued.

Complaint Process

There are also procedural changes.

An employee whose employment is terminated must file a complaint within 6 months of their last day of employment. However, the new provisions allow terminated employees to ask the Director for permission to file a complaint past the six months from their last day at work. This change welcomes late applications so long as there are justified special circumstances that prevented the applicant from meeting the application deadline. The Director assessing the late application has the discretion to grant an extension of time.

As a bit of background information, once a complaint is filed, the Branch contacts all parties and explains the provisions of the Act. Complaints are often resolved at this stage. Otherwise, your complaint may proceed to an investigation and a determination of whether the Act was contravened. The Director can order administrative penalties for every contravention of the Act and order payment of unpaid wages. It is important to note that interest is added to the unpaid wages an employee is owed and it is accrued until the date of payment.

Stay tuned for further updates on more changes to come.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to any workplace matters, please contact Ale Henao or Chris Drinovz.

Alejandra (Ale) Henao joined the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP) in 2020. Ale has a particular expertise in WorkSafeBC and human rights claims, and also practices employment law. Ale's extensive volunteer experience includes being an executive member of the TRU Black Law Students' Association and creating and facilitating content and programs for the West Coast Women's Legal Education and Action Fund (LEAF).

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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Vaccine Mandates and Workplace Vaccin...

Given the rapid progression of the Delta variant and the precedents coming from some...

Rael v Cartwright Jewelers and another, 2021 BCHRT 106

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

Last Update: September 11, 2021

Jump to: FAQs for Employers

Private BC Businesses and Workplace Vaccination Policies

Given the rapid progression of the Delta variant and the precedents coming from some U.S. and Canadian companies, and more recently the B.C. Government's announcement on the proof of vaccination order, more and more private businesses have also been considering workplace vaccination policies, either mandatory or voluntary. When asked whether employees at private businesses could soon face requirements to be fully vaccinated as a condition of employment, Dr. Bonnie Henry said on August 12, 2021:

That is fair game. These are business decisions that they (the individual workplaces) need to make in conjunction with their own labour lawyer advisors but I do think it is a perfectly valid thing.

The latest B.C. Government announcement on the Proof of Vaccination Order has further solidified the idea of vaccination requirements being possible.

Our Employment & Labour Group first wrote a detailed article on this topic back in January 2021, when vaccinations were just starting to roll out - the article provides more details on rights and obligations and is available here.

Our Labour Lawyer Chris Drinovz was recently asked to provide his commentary on CBC News regarding Vaccine Mandates in Workplaces and hurdles business owner employers might face if implementing a vaccination policy at their individual workplace. Video from CBC News Vancouver aired on August 13, 2021:

Below we included a summary of Chris Drinovz' comments from CBC News written article available in full here:

Drinovz says that the threat of variants and the fact that vaccines curb virus transmission could be enough proof for some employers to require vaccines. Without provincial legislation, however, each employer's decision will have to be on a case-by-case basis.

Human rights are an obvious concern when it comes to vaccine mandates, according to Drinovz. This is especially so, given that it is entirely legal for non-unionized workplaces to fire employees for any reason whatsoever, including not being vaccinated. "Human rights legislation across Canada protects people from discrimination on the basis of certain protected characteristics," Drinovz said. "One of those is a medical disability, another one is somebody's legitimate religious beliefs."

In the opinion of Drinovz, not being vaccinated does not constitute "just cause" for firing. That would mean if employees were fired for being unvaccinated and felt they were discriminated against, employers could be taken to tribunals and be told to pay severance or notice.

Without the backing of far-reaching federal legislation, Drinovz says employers should be prepared to implement work-from-home and other safety measures in the absence of vaccine mandates.

Issues that Need to be Considered by Employers and Employees

Nature of Workplace

While the encouragement to implement a workplace vaccination is there, employers should do their homework before implementing a policy at their workplace and discuss it with an employment/labour lawyer as recommended by Dr. Henry in her August 12 statement. The nature of each workplace varies and the requirement for a vaccine should be connected to a real threat of an outbreak within the workplace or the need to protect vulnerable people within the workplace.

Human Rights Accommodations

There are also individuals who may be protected against discrimination under the BC Human Rights Code (i.e. unable to get vaccinated due to medical reasons or sincere religious beliefs) who need to be accommodated by the employer.

Employees who experience discrimination and have a medical condition preventing them from receiving the Covid-19 vaccine may have a human rights claim against the employer.

Wrongful Termination and Severance Pay

In most cases where an employer terminates an employee for not complying with their mandatory vaccination policy, the employee is entitled to notice or severance pay based on their employment contract or common law in the absence of a valid written termination clause.

Privacy Considerations

Employers should keep in mind that even asking an employee whether they have had the vaccination and requesting proof of vaccination or a vaccination certificate is a collection of personal information/personal health information triggering privacy considerations. Information regarding an employee's identity and vaccination status should not be shared with other employees.

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 for 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.

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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.

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.

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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BC Court Deducts CERB From Wrongful D...

Many clients have wondered what the impact of COVID would have on terminations and wrongfu

Personal

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

Many clients have wondered what the impact of COVID would have on terminations and wrongful dismissal claims. It was inevitable that we would see decisions dealing with these issues as we come out of (hopefully) the worst of the pandemic and move into Phase #2 and beyond. A recent case involving a car dealer touched on many important issues including those related to COVID.

In Hogan v 1187938 B.C Ltd., 2021 BCSC 1021 the Plaintiff was employed by a car dealership since 1998. He began as a mechanic and had been promoted to Assistant Service manager at the time of his dismissal in 2020. He was, like many employees, issued a temporary layoff notice on March 24th 2020 with the expectation of being called back to work. The pandemic continued to impact the dealership and on August 28th, 2020 the Plaintiff was formally dismissed and was paid $13,255 in severance pay. While on layoff, the Plaintiff received $14,000 in CERB benefits, plus EI benefits.

The Plaintiff was offered work with a related car dealership in the lower position of service advisor effective April 1st 2021. The offer was conditional on the settlement of the claim and included a further payment from the Defendant of lost wages up to the date of rehire (April 1, 2021) plus any additional shortfall between wages from the previous job and the new job. The Plaintiff turned the offer down—a really gutsy call but ultimately was successful at trial.

A number of issues were canvassed by the Court. Time and space do not allow a full detailed analysis so I will simply highlight key points. If you want to learn more about the case please give Mike or Chris a call.

Procedure - Summary Trial

The Rules of Court allow a Plaintiff to proceed by way of summary trial instead of a full trial. The procedure is based on affidavit evidence and examination for discovery transcripts only versus live witness testimony in full trials. It is cost effective and efficient and will be allowed so long as the evidence on critical points does not turn on credibility. The parties here agreed to the procedure. The Court endorsed its use pointing out that it was proportionate, timely and cost effective. Plaintiffs often use this procedure as the notice period might extend well beyond the trial thus minimizing the impact of potential mitigation.

A word of caution. Parties are encouraged to ensure they follow the procedures and rules of evidence. In one recent case involving a car dealership the defendant failed to follow the court’s rules and protocols resulting in delay, extra costs and the ire of the court. It was not surprising that the court awarded the Plaintiff in that case the high end notice period he sought.

Constructive Dismissal

The Plaintiff argued he was constructively dismissed in March 2020 when he was temporarily laid off due to COVID. The Defendant argued he accepted the temporary layoff so his termination occurred in August 2020.

The Court held that the Plaintiff was constructively dismissed in March 2020. There was no evidence the contract of employment allowed the Defendant to unilaterally place employees on temporary layoff and in fact this was not a temporary layoff. The court accepted that the Defendant acted in good faith for legitimate business reasons but at the end of the day the layoff was a termination.

It does not appear that the Defendant argued that the temporary layoff brought about by COVID 19 was a frustration of contract.

Notice Period

The court considered the Plaintiff’s age, (52), length of service (22 years), position (mid manager) and availability of alternate positions. It accepted the Plaintiff’s argument and awarded 22 months’ notice.

This decision is important – many argued that the courts would sympathize with employers and would lower the notice periods given the impact of the pandemic on employers. Indeed here the Defendant argued that the automotive industry was depressed but that factor actually worked in favour of the Plaintiff’s argument for a longer notice period as it was difficult to find employment. The Court of Appeal has held that economic circumstances can be used to increase the notice period for employees but it cannot be given undue weight. It appears that remains good law as in this case although it was considered it did not lead to an unreasonably high notice period when compared to other decisions.

Mitigation

The offer of employment by a related company coupled with the Defendant’s offer to make the Plaintiff whole up to the point of the new employment, on its face suggests a strong mitigation defense. However the court rejected the mitigation argument. It was concerned about the fact that the job was a demotion and it required a lot of overtime that the Plaintiff would have trouble doing as he had to care for his sick children. But the key reason appears to be the requirement that the Plaintiff compromise his legal claim in order to get the job—something the court felt was unreasonable.

Damages and Deductibility of CERB Payments

The Plaintiff claimed that damages should be based on his 2019 income which included a bonus. The Court rejected that argument because there were no bonuses paid in 2020 and none likely to be paid in the foreseeable future. Therefore damages were based on salary.

The most important aspect of the decision is the fact the Court agreed with the Defendant that the $14,000 in CERB payments should be deducted from the damage award. Unlike EI that has a clawback provision, there was no evidence that the Plaintiff would have to pay the CERB benefits back. Neither the employer nor the employee contributed to the benefits. This is an important win for employers. Interestingly, in Ontario two different judges have issued opposing decisions on this CERB deductibility issue – we expect the Ontario Court of Appeal will decide for that province soon. It is also possible that the Plaintiff will appeal this BC decision – we will keep you posted on any developments!

Takeaways for Employers

For over 35 years I have counselled employers to consider limiting their liability for wrongful dismissal claims by having enforceable written contracts. Such contracts should also include other provisions for clarity such as a provision for temporary layoffs, suspensions and clear descriptions of bonuses and incentive payments. In this case it could have been possible for the employer to limit its liability to 8 weeks’ (2 months) severance pay as per the Employment Standards Act versus a 22 month damage claim. Why pay 20 months extra plus all the legal fees? As employers come out of COVID it would be worthwhile to once again consider this option.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to any workplace matters, please contact Mike Weiler.

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 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.

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New B.C. Covid-19 Related Paid Sick L...

On May 11, 2021, the B.C. government introduced Bill 13 – 2021: Employment Standards Am...

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Author: Junki Hong and Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group

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On May 11, 2021, the B.C. government introduced Bill 13 – 2021: Employment Standards Amendment Act (No 2), 2021 (the “Bill”), which provides employees with up to three days of paid sick leave related to COVID-19 between May 20, 2021 and December 31, 2021, and establish a permanent sick leave program that would take effect on January 1, 2022.

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The full Bill is available here and the BC Government’s original press release can be accessed here. The first reading of the Bill took place on May 11 and the Bill received Royal Assent on May 20, 2021. The progress of the Bill can be viewed here.

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Covid-19 Related Paid Sick Leave

Who Does it Cover?

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Following previous recent amendments to the Employment Standards Act, employees are already entitled to unpaid Covid-19-related leave for certain circumstances under section 52.12 of the Act.

Under the Bill, some of these circumstances will entitle employees to paid leave. Employers will be required to provide full wages for up to three days as paid leave in each employment year to full time or part time employees, in specific circumstances where:

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the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act(Canada),
(iii) guidelines of the British Columbia Centre for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work.

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Employees who are entitled to paid COVID-19-related leave would also continue to be entitled to unpaid leave following the 3-day period of paid leave, so long as the circumstances for which they have become entitled to the leave apply (e.g. the employee continues to be subjected to a mandatory period of quarantine), as well as an additional up to three hours leave for Covid vaccination (per dose).

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Calculations & Employer Reimbursement

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Where the paid leave applies, employers will be required to pay the employees their average day’s wage for each day of the leave, up to a maximum of three days in accordance with the formula set out in the amendments:

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Similar to the existing formula under the Act for statutory holiday pay, the paid COVID-19 leave will take into account the wages earned by the employee over the prior 30 calendar days, less any overtime earned, in calculating the employee’s average day’s pay.

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According to the press release details, employers without an existing sick leave program can seek reimbursement from the B.C. government in the amount of up to $200 per worker per day to cover their costs. Employers that have a highly paid workforce, but do not already have paid sick leave, will be required to cover any remaining wages owed above $200 for each COVID-19 sick day taken. WorkSafeBC will be administering the employer reimbursement program starting in June.

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Who Is Not Covered

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The paid leave does not apply to employees:

providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
being outside the province who cannot return to British Columbia because of travel or border restrictions; or
any other prescribed reason.

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While not all employees may qualify for the new paid sick leave, the existing Covid-19-related unpaid leave continues to be available, as well as an additional up to three hours of paid leave from work to receive each dose of the COVID-19 vaccine.

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Collective Agreements

Unionized employers need to consider whether existing collective agreement provisions respecting paid sick days meet or exceed these requirements. If they do, the agreement provisions will apply instead. If they do not, the requirements of the Bill will be deemed incorporated into the collective agreement.

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Proof of Eligibility

Employers can request reasonably sufficient proof that a required circumstance applies to the employee, however a note from a medical practitioner should not be requested, and employees are not required to provide one.

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Permanent Paid Sick Leave Program - 2022

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In addition to the COVID-19 related leave, the Bill proposes a permanent paid sick leave program for employees unable to work due to an illness or injury. The number of paid days will be determined after consultations with the business community, labour organizations, Indigenous partners, and other stakeholders.

This new leave will apply to employees after 90 consecutive days of employment with their employer and would come into effect in January 2022.

UPDATES: Please see our Articles on the New Paid Sick Leave 2022 here:

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to any workplace matters, please submit a Contact form.

Junki Hong joined the KSW Employment and Labour Group in 2020 with a background in employment law, intellectual property and commercial disputes. Junki is fluent in Korean, and regularly contributes articles to the Vanchosun Korean Newspaper. He also gives back to the community through membership in the Access Pro Bono Lawyer Referral Service, Federation of Asian Canadian Lawyers (British Columbia), and the Association of Korean-Canadian Scientists and Engineers.

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All Talk and No Action Can Get You In...

In February of 2021, a flight attendant (Plaintiff) brought a court action against WestJet

Author: Ale Henao, KSW Lawyers Employment & Labour Group ([email protected])

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In Lewis v WestJet Airlines Ltd., 2021 BCSC 228, the Supreme Court of British Columbia (the Court) declined to certify a proposed class action alleging workplace sexual harassment of female flight attendants at WestJet Airlines Ltd. (WestJet). Justice Horsman held that a class action was not the preferable procedure for resolving the claim and suggested that the Canadian Human Rights Tribunal (CHRT) would be a more appropriate venue for hearing the complaint.

BACKGROUND

In February of 2021, a flight attendant (Plaintiff) brought a court action against WestJet alleging sexual assault and systemic discrimination towards female flight attendants. The Plaintiff asked the court for compensation due to WestJet’s failure to comply with their own “Anti-Harassment Promise” among other workplace policies.

These policies included the Code of Business Conduct, Respect in the Workplace Policy and Procedure, and Workplace Violence Prevention Policy and Procedures. Some of these policies were incorporated right into WestJet’s employment contracts. The plaintiff claimed that WestJet did not abide by these policies nor properly investigate the sexual assault complaint of a pilot’s sexual misconduct. The Plaintiff further stated that the complaint process was ill-equipped to effectively manage harassment and discriminatory reports from any employee. The plaintiff advocated on behalf of current and past WestJet flight attendants in a proposed class action lawsuit for having to endure a discriminatory workplace.

BREACH OF CONTRACT AND COMPENSATION

At the heart of the matter, the flight attendant felt WestJet was wrongfully saving money by failing to fund and implement adequate anti-harassment policies and practices. This is why the plaintiff was asking the courts for compensation equal to the amount WestJet should have spent on these policies and practices. This type of reparation can be rewarded in exceptional circumstances where other compensation is inadequate and the plaintiff has a legitimate reason in preventing the defendant’s profit-making activity.

The court did confirm that this type of compensation can be used in these types of situations. However, the entitlement to damages was not determined in this case because the court felt the case wasn’t a class action suit but rather something for the Canadian Human Rights Tribunal (CHRT) to sort out.

PREFERABLE PROCEDURE ANALYSIS

When bringing a class action forward, the Class Proceedings Act requires a plaintiff to establish that a class proceeding is the preferable procedure for the fair and efficient resolution of the case. The plaintiff did not meet this bar. Therefore, the court reasoned that the CHRT would allow the plaintiff and claimants a more practical and efficient proceeding to achieve justice.

The court made reference to the wide range of remedies available under the CHRT. Current WestJet employees could seek remedies through collective bargaining and possibly claim retroactive grievances. Meanwhile, former employees had the option to participate in individual or multi-plaintiff claims. The court balanced these reasonably available remedies against the court’s proceedings, which were anticipated to be complex and time-consuming—ultimately deeming the CHRT more appropriate.

Although the plaintiff’s application was dismissed, an invitation was made to have the CHRT hear the complaint. That single invitation opened up the door for sexual harassment claims to be heard using a new legal approach. Traditionally, sexual harassment claims fall under tort law but this case has shown that someone can now claim breach of contract if they have been sexually harassed in the workplace.

TAKEAWAYS

So what does this mean for employers?

1. Failure to adhere to harassment and discrimination policies may give rise to claims for breach of contract. The reality is that if companies have anti-harassment policies and practices, they need to ensure compliance and be actively enforcing workplace discrimination and harassment policies, especially policies presented in an employment agreement.

2. Contractual claims could entitle employees to seek contractual remedies. By basing her claim in contract, the plaintiff was able to seek the contractual remedy of disgorgement of profits. This decision is an important reminder for employers that failure to adhere to harassment and discrimination policies may give rise not only to tort and human rights claims, but also to claims for breach of contract where those policies are incorporated into the terms of employment agreements. Employers should be aware of their policies and whether such policies are incorporated into their employment contracts, and ensure they are adhering to those policies in practice.

3. Reported incidents of sexual harassment in the workplace can be a signal of systemic problems in the workplace, and are often just the tip of the iceberg. Many employees are scared to report issues due to fear of job security, consequences or lack of action from management. Therefore it is important for employers to take a proactive approach by implementing and enforcing harassment and discrimination policies in the workplace, introducing training sessions and thorough investigations.

As this case shows, the legal world continues to evolve and change every day. Knowing all the details of employment law can become overwhelming for those who are trying to learn about it while running their business. Sometimes talking to a professional with experience and a well-rounded knowledge of the legal arena can be useful. So, if you have any questions on this topic, feel free to get in touch with myself, Ale Henao, anytime.

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 Ale Henao at [email protected].

Ale Henao joined the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP) in 2020. Ale has a particular expertise in WorkSafeBC and human rights claims, and also practices employment law. Ale's extensive volunteer experience includes being an executive member of the TRU Black Law Students' Association and creating and facilitating content and programs for the West Coast Women's Legal Education and Action Fund (LEAF).

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Law Firm Ordered to Pay Articling Stu...

A BC law firm terminated an articling student and alleged just cause. The trial judge f...

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

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A BC law firm terminated an articling student and alleged just cause. The trial judge found that there was no just cause and that the law firm’s conduct in dismissing the employee was “unfair and unduly sensitive.” The conduct included starting an action accusing the Plaintiff of theft, breach of contract, wrongful use of marketing materials, dishonesty and trespass, and then serving the Plaintiff with her termination papers and law suit in front of her classmates at her Law Society courses to ensure a “public firing.” The trial judge found this conduct to be “unnecessary and psychologically brutal” and awarded the Plaintiff $18,934 general damages and $50,000 aggravated damages.

The law firm appealed the decision on just cause to the BC Court of Appeal (BCCA), who recently released their decision in Ojanen v Acumen Law Corporation, 2021 BCCA 189. What could possibly go wrong? Plenty!

The BCCA dismissed the law firm’s appeal and upheld the decision that there was no just cause. In addition it allowed the cross appeal of the employee and awarded the following damages:

$100,000 for loss of opportunity to become a lawyer.
$25,000 punitive damages ordered against the law firm and it’s principal.
$18,934 general damages.
$50,000 aggravated damages.
Costs.

Here are some highlights.

JUST CAUSE

The issue of cause arose because the law firm found what they characterized as a competing blog that they believed the Plaintiff was running. They jumped to the conclusion that she was setting them up to go into competition. The blog was in fact started by the Plaintiff’s husband but she was in fact aware of it. However it was also found it was not a competing blog nor was the Plaintiff looking to set up in competition. In fact she was recommending to people who accessed her blog that they use the Defendant law firm.

The law firm argued that the special relationship between a law firm and an articling student whereby the law firm must assess the character of the articling student so as to be able to provide a declaration of good character at the end of articles as required by the Law Society of BC. Since the principal here could no longer trust the articling student the fundamental trust relationship had been damaged thus supporting a finding of just cause. The BCCA dismissed this argument:

Common law employment principles can be readily applied to the employment relationship between a principal and articled student. The relationship does not require different law principles or a unique application of the usual common law employment principles.

The court upheld the trial judge’s decision applying the contextual approach as mandated by the Supreme Court of Canada in McKinley v BC Tel 2001, SCC 38 that there was no just cause and that the Plaintiff was entitled to damages.

DAMAGES FOR LOSS OF OPPORTUNITY

Damages in a wrongful dismissal case are assessed by putting the Plaintiff in the same position financially as if the employer had not wrongfully dismissed her. The damages assessed must be in the reasonable contemplation of the parties. Normally a court defines the notice period and then calculates the loss resulting from the failure to give notice. But that limitation no longer applies as today “the law recognizes that some employment contracts involve more than the provision of services for remuneration and damages flowing from a wrong dismissal may take that fact into account” [para 57 quoting Machen v Dams Ford].

In this case the unusual factor was that an articling student must complete their Professional Legal Training Course (“PLTC”) in order to be admitted to the bar and practice law. The Plaintiff here was unable to complete her PLTC course. The law firm made a report to the Law Society against her. Because of the wrongful termination of her employment, together with the allegations made against her in the court proceedings, and the report to the Law Society the Plaintiff was unable to purse her legal career at least while these accusations against her “remained in play.”

The trial judge felt that it was too speculative to award damages for this lost opportunity but the BCCA disagreed. She was entitled to compensation for the loss of the opportunity to become a lawyer at the end of the articling period. The fact that such a calculation of damages is somewhat uncertain nevertheless an award of damages should be made:

An award for loss of opportunity is, by its very nature, a matter of assessment, as it is impossible to say with certainty what would have happened absent the wrongful dismissal. The assessment must consider the likelihoods of various possibilities as well as positive and negative contingencies. For example, on the negative side, Ms. Ojanen might have never passed PLTC and thus never become a lawyer even if she had not been wrongfully dismissed. Even if called, she might have chosen not to practise law. Not all called lawyers go on to practise law. On the other hand, Mr. Doroshenko, less than three months into Ms. Ojanen’s articles, was sufficiently impressed with her abilities that he made clear he wanted her to remain with the firm after her articles and that there would be plenty of work available to her. She received a favourable performance review just before commencing PLTC. Her calculations, based on $1,000 weekly earnings, are modest.

[70] I am satisfied that Ms. Ojanen has established on a balance of probabilities that she is entitled to an award for loss of opportunity. The award cannot be calculated with mathematical precision. In the circumstances of this case, I would award her $100,000 for loss of earning capacity.

PUNITIVE DAMAGES

At the BC Supreme Court level, the trial judge made no mention of the Plaintiff’s claim for punitive damages. Punitive damages are intended to punish and the object of such an unusual award are “… denunciation, deterrence and retribution” whereas aggravated damages are compensatory. Awards for punitive damages are rare. This was one of those rare cases.

The BCCA however found that the law firm’s misconduct warranted such an award:

The following conduct of Acumen and Mr. Doroshenko stands out as unfair and unduly insensitive:

a) Mr. Doroshenko decided to dismiss Ms. Ojanen without asking her about her involvement with the Blog and her intentions in undertaking it. He had not told her that internet postings that trenched on Acumen's practice interests were forbidden. When he learned of the Blog, he jumped to a conclusion that she was setting herself up in competition with Acumen. It should have been obvious to him from Ms. Ojanen's email of September 14, 2016 that her intention was to refer work to Acumen as the opportunity arose;

b) The decision to serve Ms. Ojanen in front of her classmates at PLTC was unnecessary and psychologically brutal. Ms. Ojanen lived a short walk from Acumen's office. Mr. Doroshenko knew her address. In his evidence, Mr. Doroshenko suggested that he made the decision to serve Ms. Ojanen at PLTC because the server could not locate her at home. This is manifestly untrue. The notice of civil claim was filed on September 16 and Ms. Ojanen was served before classes were done for the day. This was a deliberately public firing;

c) In the termination letter and the notice of civil claim served on Ms. Ojanen on September 16, Acumen and Mr. Doroshenko accused her of deceit and dishonesty. These accusations were harsh and unwarranted. The only basis for these accusations were unfounded suspicions;

d) The obvious probable consequence of the termination, lawsuit, and Mr. Doroshenko's report to the Law Society, was to render Ms. Ojanen unemployable in the legal profession for so long as the allegations against her remained in play;

e) Acumen and Mr. Doroshenko have persisted in unfounded allegations against Ms. Ojanen through the litigation process to this trial, three years later.

[129] The usual power imbalance between employer and employee was accentuated in this case. Ms. Ojanen was a young woman without local contacts in the legal profession. Mr. Doroshenko was the head of an established law firm. Ms. Ojanen was terribly vulnerable. Mr. Doroshenko was possessed of reputational capital and financial resources. He was not content simply to fire her but took full advantage of his favoured position to launch a campaign against Ms. Ojanen through this lawsuit.

[130] In short, Mr. Doroshenko's response on discovering the Blog was disproportionate and bullying. I find that he was determined to protect Acumen's competitive position by making an example of Ms. Ojanen.
[Emphasis added.]

The BCCA awarded $25,000 damages. It noted that absent the awards for general and aggravated damages the punitive damage award would have been higher.

Both the aggravated damage and punitive damage awards would be non-taxable and therefore of much more value to the Plaintiff.

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 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.

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Expedited Workplace Closures: New BC...

Due to the recent increase in COVID-19 cases, on April 8, 2021 the BC Provincial Health...