Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

Due to the recent increase in COVID-19 cases, on April 8, 2021 the BC Provincial Health Officer (PHO) has announced new measures to expedite the closure of workplaces that see COVID-19 transmission, effective April 12, 2021. As part of this order, the PHO has delegated specific powers of the Public Health Act to WorkSafeBC prevention officers to help health officials manage workplace transmission. Between April 12 and May 18, WorkSafeBC issued around 62 closure notices in the Fraser Health Region. See an updated list of active workplace closures here.

The finalized written order was released a few days after the announcement and is available  here. There were a couple of discrepancies between the details of the announcement and news reports, and the terms of the Order, so we will focus on the information provided in the Order first and include details from the announcement in the section following.

The Order includes a number of protocols that will be used when a "public health officer reasonably believes that one or more persons has been infected with COVID-19 while in a workplace and that it is necessary for the workplace or part of the workplace to stop operating to prevent further transmission of infection (...)."

The Order delegates WorkSafeBC prevention officers with the authority to serve notice of a Workplace COVID-19 Cases, Cluster and Outbreak Closure Order made by a medical health officer on a person who is affected by an Order by:
a. personally serving it on the person who is affected;
b. by posting a copy of the Order at a conspicuous location at the workplace;

The Order has no end date, and provides a template WorkSafeBC officers should use for the Notice of a Workplace COVID-19 Cases, Cluster and Outbreak Closure Order. Once served, the officer notifies the public health officers.

A couple of points to note when looking at the announcement and written Order:

• the public health officer can issue a closure order (Workplace COVID-19 Cases, Cluster and Outbreak Closure Order) if ONE or more persons have been infected in a workplace (versus the previously mentioned 3 or more)
• there is no mention of the length of the closure order in the written order (previously announced 10 or more days); however Fraserhealth specifies it is minimum 10 days;
• there is no mention of how closure can be restricted to only parts of the workplace for some more complex workplaces
• no exceptions due to overriding public interest are addressed either
• there's no further infromation on what will be required to re-open the workplace, whether WorkSafeBC officers will conduct multiple inspections etc.

Fraser Health has released more information and guidance regarding Workplace Closures including a list of active workplace closures, as well as further information on the process for reopening, 10 day minimum order and more. This covers some of the above-noted points not included in the written order. See their page here. We have included some details below:

Assessing a workplace for transmission

The likelihood of transmission on-site is assessed using testing results, information cases provide about their activities and interactions, as well as information about the worksite itself. Worksites where onsite transmission cannot be ruled out will be closed. Cases may be employees or patrons.

Length of a closure

Workplaces ordered closed by Public Health must remain closed for a minimum of 10 days to reduce the risk of transmission. This is a minimum timeline to break the cycle of transmission, taking into account the incubation period of COVID-19 and the time it takes for individuals to be tested. An incubation period is the time from exposure to the start of symptoms.

However, if more recent exposures than were already known are found on-site, it could delay the reopening of a workplace. Public Health will notify a business as soon as possible if any changes to the reopening timeline are expected.

During a closure

During a 10-day closure, Public Health will continue to investigate the risk of COVID-19 transmission at the workplace, as well as any new cases identified in connection to the workplace. They may also need to gather further information about the workplace staff or the COVID-19 safety plan and procedures.

If Public Health cannot gather sufficient information in order to assess the transmission risk, reopening may be delayed beyond 10 days. To support a worksite reopening as soon as possible, a worksite representative should be available to assist the investigators during this time.

Public Health or WorksafeBC may need to inspect the site either during the period the business is closed or at the time of reopening. This supports workplaces in strengthening their COVID-19 safety plans to reduce the chance of transmission at the workplace if new cases come to the worksite after reopening. An inspection can assist in answering any questions a business may have about COVID-19 safety plans, and it will identify and address any issues before reopening.

If Public Health does not require additional information for their investigation, a workplace may not hear directly from the cluster investigation team.

Reopening after closure

Public Health or WorksafeBC will work with you on any changes required to your COVID-19 safety plan during your closure. You may reopen 10 days after the closure unless you hear otherwise from Public Health.

The Fraserhealth page also provides some FAQs, confirming:

• there is currently no reconsideration or appeal process for a closure order
• Fraser Health previously mentioned workplaces could not open even with new/different staff, however this note has been taken down from their FAQ page
• staff not officially identified as close contacts could work at different sites however it is strongly discouraged to avoid posing risk to another worksite
• closures only occur if transmission is likely to have happened within the workplace, as determined by a public health investigation

Previous Announcement Details from the Joint Statement on BC’s COVID-19 Response (April 8, 2021):

“Starting Monday, when the public health investigation determines that transmission has occurred at the workplace, an order may be issued closing the workplace for 10 days or longer to stop the transmission. In the case of complex workplaces (e.g., large construction sites), the closure may be restricted to those parts of the workplace where transmission has occurred.”

“Public health will also assess whether there is an overriding public interest to keep the workplace open. This would apply to such locations as police stations, fire halls, health-care facilities, schools, shelters, the ferry system, public transportation and distribution hubs of necessary goods such as food and medicine, pharmacies and grocery stores.”

“When a closure is ordered, WorkSafeBC will serve the closure notice and will then support the workplace to review and enhance safety plans, as needed. A list of workplaces that have been closed and the date of their reopening will be posted on the health authority websites. In all cases additional outbreak control measures, including contact tracing and immunization will continue under public health direction.”

Information from WorkSafeBC Site:

Under the PHO order, the powers delegated to the WorkSafeBC prevention officers will be limited to serving a closure order on a business with a known COVID-19 outbreak. The closure order will be in effect for a period of 10 days or more, as prescribed by the health authority’s medical health officer on a case-by-case basis, and served by WorkSafeBC officers when directed to do so by a provincial medical health officer.

Visit from WorkSafeBC or Environmental Health Officer & Tips from Experience of Clients

Public Health may conduct an on-site inspection prior to ordering the closure of a workplace, however in most cases they do not. This may be carried out by a WorkSafeBC prevention officer or an Environmental Health Officer. This may include physical site inspection, interviews of employees, and a review of the employer’s COVID-19 Safety Plan. If you are the subject of an inspection, we recommend being open and sharing your COVID-19 Safety Plan to really highlight the safety measures in place that prevent transmission in the workplace. We also recommend that you seek professional advice at this stage as soon as possible. Based on the experience of some of our clients and colleagues, it is more likely that once a Covid-19 case is reported by an employee, an officer will interview them regarding conditions at the workplace, and the officer will also contact the employer to ask questions and potentially request their Covid Safety Plan.

Once the investigation completed, a Medical Health Officer will make the final decision on whether the circumstances warrant closure. We note again that an order may be issued to prevent transmission and to allow time for the workplace to update its COVID-19 Safety Plan. Sometimes this decision will be communicated by phone to the employer prior to service of the Order on the premise. If you get notified and don't believe a proper investigation was conducted or the case doesn't expose any other employees, seek advice right away. There may be a small window to push back before the closure order is actually delivered.

Once the decision has been made, the WorkSafeBC prevention officers have been delegated to serve notice of the closure order. At this stage, the Officer has no discretion to cancel the order or make any major changes to the Order. However, the officer can determine whether any individuals will be permitted to remain at the workplace during a closure. So it will serve employers to consider these issues carefully with WorkSafeBC to determine if certain employees can remain at work or certain departments can safely remain open without risk of further transmission.

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Recommendations for Employers

• COVID-19 Safety Plans: all employers should review their COVID-19 Safety Plan and ensure it is in compliance with the WorkSafeBC guidelines, and that it is being followed closely by all;
• Remote work: as part of the increased measures announced on March 29, 2021, the PHO included direction for employers to continue to actively support remote working options wherever operationally possible.

We will continue to update this article with further information once available.

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 cdd@ksw.bc.ca.

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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Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

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In this follow up article, we have compiled a list of FAQs and answers from various sources including guidance the B.C. Government has released for its own Public Service employees. Read our previous FAQs article here.

How will COVID-19 vaccination change workplace safety plans?

Workplace safety plans and Public Health protective measures, when followed, are successful in providing protection from COVID-19 transmission in our workplaces. The practices each reduce the risk of transmission and, as layers, together minimize the risk of COVID-19. These practices include staying home when sick, screening for symptoms, wearing masks, sanitizing, and most importantly keeping two metres distance from one another.

COVID-19 vaccination, which is shown to be highly effective, provides a further layer of protection for individuals from COVID-19 infection and severe illness. These layers of protection will remain an important workplace practice and permit safe delivery of services to clients with unknown immunity status.

The current Public Health vaccination strategy is focused on prioritizing vulnerable individuals and by age demographics, so vaccination levels in the BC Public Service workforce will vary over time. Workplace Safety plans and public health practices will continue to maintain workforce protections as the immunization plan is completed or until there is a change in Public Health direction.

Will employees be able to take leave to get their Covid-19 vaccination?

As part of B.C.’s COVID-19 Immunization Plan, workers in B.C. are guaranteed three hours of paid leave to receive each dose of their COVID-19 vaccine. The update to B.C's Employment Standards Act applies to full- and part-time workers and is retroactive to April 19, 2021. This is in addition to the change from April 1, 2021, when the B.C. Government expanded the scope of the current job-protected unpaid COVID-19 related leave under the Employment Standards Act by granting all part-time and full-time workers with the ability to take unpaid time away from work to receive the COVID-19 vaccine.  The two leaves can be used together and workers will be able to take the paid 3 hours time as needed to travel and receive the vaccine or used additional unpaid leave to take a dependent family member to receive the vaccine.

Additional changes to the Employment Standards Act (B.C.) include expanding the provincial COVID-19 related leave to align with the federal Canada Recovery Sickness Benefit (CRSB) and the Canada Recovery Caregiving Benefit (CRCB). A worker can now take COVID-19 related leave if they need to care for family members, not just dependents, due to COVID-19. Workers with underlying conditions, who are undergoing treatment or who have contracted another illness that makes them more susceptible to COVID-19, will also be allowed to take the leave.

Considering privacy restrictions, do employees have to tell employers if they have been vaccinated? Should employers share information on the number of employees immunized at the workplace?

Vaccination status is part of an individual’s confidential medical history. As such, most employers may not be able to compel employees to disclose personal medical information such as whether they have taken the vaccine.

That being said, the test for disclosure of personal medical information is one of reasonableness and proportionality. As such, requesting this information is likely appropriate for workplaces where safety mandates such disclosure (e.g. health care). Certain employers with legitimate health concerns will still be entitled to ask employees if they have been vaccinated (e.g. processing plants where COVID-19 exposure has historically been high). However, the employee will likely be at liberty not to respond. In such cases, we recommend treating an employee that refused to disclose as having not taken the vaccine. We also do not recommend sharing specific information on the status of immunized employees at the workplace. This might become more clear with future orders from the PHO. Please see our previous article on privacy considerations here.

Once an employee gets vaccinated should they still have to follow COVID protocols in the workplace?

Yes. Workplaces have been safe since the beginning of the COVID-19 pandemic due to the protocols and protections in place. These include:

• Active daily health checks
• Physical distancing
• Reduced workplace capacity
• Remote work
• Enhanced Cleaning
• Mask use
• Use of physical barriers
• Limiting the number of visitors and customers

Until community (or “herd”) immunity is achieved, and community transmission decreases, these protections should stay in place to protect those that are not vaccinated. Employers should follow the Provincial Health Officer’s guidance on when to scale back the protections for workplaces.

What is the current direction on returning to the workplace and remote work?

On March 29, 2021, the Provincial Health Officer announced increased measures to address the continued growth in COVID-19 cases in B.C. These included direction for employers to continue to actively support remote working options wherever operationally possible.

Where operationally feasible we strongly recommend employers to allow employees to work remotely. Information on what employer's obligations are for employees who work from home is available at the end of our article here.

The Provincial Health Officer’s order also requires daily health checks for all employees attending a workplace anywhere in the province. You can access the template we put together based on the PHO guidelines and COVID-19 Self Assessment Tool.

I am hearing about COVID-19 variants here in B.C. Is there anything my workplace should do differently?

COVID-19 variants spread the same way as the original COVID-19 virus. The same COVID-19 protocols will protect you in the workplace e.g. physical distancing, barriers, washing your hands, and staff staying home when you aren’t feeling and the use of PPE where required.

However, because variants may be better at spreading and infecting people, it is critical that everyone follows the workplace COVID-19 protocols and public health guidance at all times.

Some additional safety measures for employees attending the workplace could be requiring the use of masks at all times in all work areas, as opposed to common spaces only (this goes beyond the current PHO requirements for workers to wear masks when two metre physical distancing can’t be maintained and in lobbies, hallways, stairwells, corridors, bathrooms, break rooms, kitchens auditoriums, and gyms).

I have an employee who has tested positive for COVID-19. What does this mean for the workplace? Do we need to close our workplace?

Any employee who is sick with COVID-19 symptoms must stay home and away from others. Public Health is notified of all positive tests immediately and contact tracing will begin by speaking to the COVID-19 positive employee. This review will identify the nature of contacts in the community, social or work locations in the 48 hours prior to becoming symptomatic.

If Public Health staff identify any close contacts during this review, those individuals will be contacted directly by Public Health and given self-isolation advice. Public Health will only contact the workplace if there is a concern about transmission of the virus in the workplace or difficulty contacting individuals.

In all cases, not hearing from Public Health official means the risk of transmission is low and no further notifications or actions are required. Cleaning should take place at the workplace as soon as possible.

In terms of co-workers, determine the level of interaction with the employee. Your workplace COVID-19 Safety Plan and protocols including daily active screening, distancing and hygiene significantly reduce the risk of associated transmission in the workplace.

Low-risk exposure to a confirmed COVID-19 case includes walking by the person or briefly being in the same room with two metres distance. If low risk, the co-workers can continue usual activities, including daily self-checks for symptoms and practice good hand hygiene and social distancing in public, at home and at work.

Be prepared to provide information to Public Health officials about the workplace if they contact you. If a COVID-19 positive individual was in the workplace while symptomatic or Public Health has contacted the workplace, supervisors are encouraged to communicate when this has occurred while protecting the identity of the individual, and to convey any identified cleaning protocol that was undertaken.

With the newly announced Public Health Order on Expedited Workplace Closures effective April 12, 2021, if one or more employees have COVID-19 and public health officers determine that transmission is occurring at the workplace, an order may be issued closing the workplace for 10 days or longer to stop the transmission. See our article covering the new order here.

General COVID-19 Resource Links:

For general information on COVID-19, see the BC Centre for Disease Control online resources at http://covid-19.bccdc.ca/.

If an employee may have symptoms, the BC Centre for Disease Control’s self-assessment tool can help you determine if you need further assessment or testing for COVID-19: https://covid19.thrive.health.

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 cdd@ksw.bc.ca.

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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Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

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The BC Human Rights Tribunal issued a decision on April 8, 2021 confirming that an employee’s objection to wear a mask, based on his opinion that it does not stop the transmission of COVID‐19, was not a belief protected by the Human Rights Code (The Worker v The District Managers, 2021 BCHRT 41).

In this case the Complainant was contracted to do work at a District facility, and was asked to wear a face mask upon entering the workplace. He refused to wear a mask, saying it was his “religious creed.” The Employer subsequently terminated his work contract.

The Complainant filed a human rights complaint against the Employer, alleging discrimination based on religion, in violation of s. 13 of the Code. The Tribunal dismissed the complaint and found that the Complainant:

has not set out facts that could establish that his objection to mask‐wearing is grounded in a sincerely held religious belief. Rather, his objection is based on his opinion that wearing a mask does not stop the transmission of COVID‐19. This is not a belief protected by the Code.

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.

In this case at para 10, the Complainant described his religious belief as follows:

“We are all made in the image of God, a big part of our image that we all identify with is our face. To cover‐up our face arbitrarily dishonors God”. The Worker says it is his freedom of expression to show his face in the general public and his religious liberty to identify his face to others. He says the mask requirement infringes on his “God given ability to breath”. The Worker does not believe that mask wearing is effective. He says, “God makes truth of high importance that I must follow ethically and morally”, “forced mask wearing does not help protect anyone from viruses”, and, therefore, he cannot “live in that lie.”

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.

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 cdd@ksw.bc.ca.

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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Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

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More Wage Cut discussion covered in our 2020 Return to Work After Covid-19: 5 Critical Questions to Ask Article.

CAN AN EMPLOYER IMPOSE A 10% WAGE CUT

If employers simply want to unilaterally impose a wage cut then they run the risk of creating a constructive dismissal. A constructive dismissal will occur when an employer unilaterally imposes a fundamental change to employment terms or otherwise changes fundamental terms. The courts ask whether the conduct evinces an intention on the part of the employer to no longer be bound by the employment contract.

While pay and benefits are clearly central to the employment relationship it is clear that some reductions in remuneration will not constitute a constructive dismissal. In Pavlis v HSBC Bank Canada 2009 BCSC 498 the court considered how big a decrease in pay would have to be to constitute a constructive dismissal. Generally the court stated that a reduction in salary of up to 10% would not be a fundamental breach; a reduction 14—17 % may amount to a fundamental breach if another significant or substantial unilateral change occurs and any reduction beyond 20% will on its own will be a fundamental breach.

Although these cases were decided in a Pre COVID world, early cases summarized below and in our recent 2021 articles indicate the courts continue to be more sympathetic to employees although these changes were necessitated in order to continue in business.

If the change does not constitute a constructive dismissal an employee may have a right to claim wages under the Employment Standards Act which now provides that claims can go back 12 months.

Employers should not take any chances in our view if they can get the employees to accept the reduction. Such an agreement in writing may well constitute a defence to a constructive dismissal claim. Further even in the absence of a written agreement if the employee continues on in the employ under the altered terms without complaint then likely she will have been found to have condoned the change.

Finally if the employee refuses to accept the reduction in pay then we recommend employers continue to offer that position as the employee may be bound to accept the new pay structure in mitigation of her damages.

2021 CASE LAW UPDATE

In a recent decision Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225, the Alberta Justice found that the employer’s implementation of a COVID-19 related Cost Reduction Program imposing a salary reduction of 10%, a suspension of the RRSP contribution valued at 6% of the employee’s salary, and the “delay/cancellation of the 2019 Bonus Program” amounted to constructive dismissal. The total reduction in compensation was between 16.6 and 20%. The employee was a 47 year old Engineer who had worked with the employer for over 6 years, and was awarded 9 months notice.

An interesting aspect of the case was that the employee did not actually resign but was expressly terminated 25 days into the Cost Reduction Program. The issue of constructive dismissal arose in the context of assessing damages. In particular, the employer argued that the employee’s damages during the notice period should be based on her “post-cut” reduced income. The judge disagreed, finding that even though the employee had never actually resigned, it was a constructive dismissal which commenced at the time of the breach by the employer. Therefore, the employee’s “pre-cut” income was used. Further, the Court found that even though 25 days had passed after the compensation cut with no action by the employee, this was not long enough for the employee to have been deemed to have condoned the change, “in the turbulent economic conditions”.

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 cdd@ksw.bc.ca.

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.

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

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More Wage Cut discussion covered in our 2020 Return to Work After Covid-19: 5 Critical Questions to Ask Article.

CAN AN EMPLOYER IMPOSE A 10% WAGE CUT

If employers simply want to unilaterally impose a wage cut then they run the risk of creating a constructive dismissal. A constructive dismissal will occur when an employer unilaterally imposes a fundamental change to employment terms or otherwise changes fundamental terms. The courts ask whether the conduct evinces an intention on the part of the employer to no longer be bound by the employment contract.

While pay and benefits are clearly central to the employment relationship it is clear that some reductions in remuneration will not constitute a constructive dismissal. In Pavlis v HSBC Bank Canada 2009 BCSC 498 the court considered how big a decrease in pay would have to be to constitute a constructive dismissal. Generally the court stated that a reduction in salary of up to 10% would not be a fundamental breach; a reduction 14—17 % may amount to a fundamental breach if another significant or substantial unilateral change occurs and any reduction beyond 20% will on its own will be a fundamental breach.

Although these cases were decided in a Pre COVID world, early cases summarized below and in our recent 2021 articles indicate the courts continue to be more sympathetic to employees although these changes were necessitated in order to continue in business.

If the change does not constitute a constructive dismissal an employee may have a right to claim wages under the Employment Standards Act which now provides that claims can go back 12 months.

Employers should not take any chances in our view if they can get the employees to accept the reduction. Such an agreement in writing may well constitute a defence to a constructive dismissal claim. Further even in the absence of a written agreement if the employee continues on in the employ under the altered terms without complaint then likely she will have been found to have condoned the change.

Finally if the employee refuses to accept the reduction in pay then we recommend employers continue to offer that position as the employee may be bound to accept the new pay structure in mitigation of her damages.

2021 CASE LAW UPDATE

In a recent decision Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225, the Alberta Justice found that the employer’s implementation of a COVID-19 related Cost Reduction Program imposing a salary reduction of 10%, a suspension of the RRSP contribution valued at 6% of the employee’s salary, and the “delay/cancellation of the 2019 Bonus Program” amounted to constructive dismissal. The total reduction in compensation was between 16.6 and 20%. The employee was a 47 year old Engineer who had worked with the employer for over 6 years, and was awarded 9 months notice.

An interesting aspect of the case was that the employee did not actually resign but was expressly terminated 25 days into the Cost Reduction Program. The issue of constructive dismissal arose in the context of assessing damages. In particular, the employer argued that the employee’s damages during the notice period should be based on her “post-cut” reduced income. The judge disagreed, finding that even though the employee had never actually resigned, it was a constructive dismissal which commenced at the time of the breach by the employer. Therefore, the employee’s “pre-cut” income was used. Further, the Court found that even though 25 days had passed after the compensation cut with no action by the employee, this was not long enough for the employee to have been deemed to have condoned the change, “in the turbulent economic conditions”.

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 cdd@ksw.bc.ca.

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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Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

CASE SUMMARY

In a recent case from the Ontario Superior Court, Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, the plaintiff was terminated from his employment with Peninsula without cause on March 25, 2020. He was then 56 years of age and had worked for Peninsula as a Business Development Manager for just over two years.

The job duties he had were more similar to a sales position than a manager position, and Mr. Iriotakis’ compensation was largely commission based. He received a base salary of $60,000 per year but his compensation for the last full year of his employment (2019) was $145,186.30.

Upon his termination, the plaintiff was paid four weeks of base salary plus all benefits accruing during that four-week period, pursuant to his Employment Contract. The plaintiff did not receive any amount in respect of commissions following his termination as Peninsula’s position was that he was not entitled to any following his termination even during his notice period. The plaintiff was able to secure alternative employment almost seven months following the termination.

At trial, the Court found that the termination clause in the Employment Contract was void for violating the minimum required payments/period prescribed under the Employment Standards Act (Ontario). The termination clause Peninsula tried to rely on in this case purported to absolve the employer of all liability towards the employee in the event of termination for cause, in language sweeping enough potentially to include accrued but unpaid wages. Although the plaintiff here was not terminated for cause, Ontario courts will strike the whole Termination clause in an Employment Contract where any of the subsections violate the Employment Standards Act (this is not the case in BC to date, but should be taken into consideration when drafting termination clauses as a precaution).

In this case the Court found that the plaintiff was entitled to 3 months of notice under common law, and held that the COVID-19 pandemic increased the notice period that the plaintiff would otherwise have been entitled to, though restraint was warranted in the circumstances:

[19] I was asked to make findings about the job market and the possible impact of Covid-19 on Mr. Iriotakis. I have little doubt that the pandemic has had some influence upon Mr. Iriotakis’ job search and would have been reasonably expected to do so at the time his employment was terminated in late March 2020. However, it must also be borne in mind that the impact of the pandemic on the economy in general and on the job market, in particular, was highly speculative and uncertain both as to degree and to duration at the time Mr. Iriotakis’ employment was terminated. The principle of reasonable notice is not a guaranteed bridge to alternative employment in all cases however long it may take even if an assessment of the time reasonably anticipated to be necessary to secure alternative employment is a significant factor in its determination. I must be alert to the dangers of applying hindsight to the measuring of reasonable notice at the time when the decision was made to part ways with the plaintiff.

[22] I do agree that the plaintiff’s age and the uncertainties in the job market at the time of termination both serve to tilt the period of reasonable notice away from the fairly short period of notice that his short period of service might otherwise indicate. However, these factors do not apply to the exclusion of the others. A balanced approach is what is called for.

Lastly, in addressing the issue of whether the CERB received by Mr. Iriotakis should be credited to his employer as mitigation income, the Court held as follows:

[21] … On balance and on these facts, I am of the view that it would not be equitable to reduce Mr. Iriotakis’ entitlements to damages from his former employer by the amount of CERB given his limited entitlements from the employer post-termination relative to his actual pre-termination earnings. I decline to do so.

In the upcoming months we will no doubt be seeing new decisions from British Columbia courts clarifying the effects of this pandemic on the notice period and mitigation.

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 cdd@ksw.bc.ca.

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.

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

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One of the few early decisions issued by the BC Supreme Court so far looking at wrongful dismissal claims, notice periods and mitigation during “COVID” times is Mohammed v Dexterra Integrated Facilities Management, 2020 BCSC 2008.

EMPLOYEE'S DUTY TO MITIGATE

A terminated employee who fails to take reasonable steps to search for new employment may find that a court will reduce his or her entitlement to wrongful dismissal damages. The Court has a great deal of discretion when deciding how much the damage award should be reduced where the employee fails to mitigate their loss. The employer bears the evidentiary burden of proving that the dismissed employee failed to mitigate his or her damages.

CASE SUMMARY

In this case, the plaintiff worked for the employer as a supervisor of cleaning staff for the Tsawwassen Mills Mall for 17 months before being terminated without cause on November 11, 2019 (along with 40 other employees). He was 51 years old at the time. He was offered 4 weeks of working notice. He was able to secure alternative employment right after with Alpine Maintenance, but his employment was terminated after two months. He had not worked since.

The plaintiff brought a wrongful dismissal action, arguing that four weeks of notice was insufficient, and that he tried to find work in his field following his employment with Alpine Maintenance. He testified that the COVID-19 pandemic affected his ability to find work and mitigate his damages.

The Court looked at the usual Bardal factors and determined the plaintiff was entitled to five (5) months’ notice, mainly taking into account his age (finding that being over 50 years old was a material disadvantage) and job duties (including the importance of his role to help Dexterra maintain its contract with Tsawwassen Mills Mall). The Court made an important note that “length of service is less of a predominant factor where the job tenure was relatively short.” In this case although the plaintiff was with the employer for less then 2 years his notice period was five months.

It should be noted that the Court did not find that the length of reasonable notice was influenced by the COVID-19 pandemic since the notice period is determined as at the date of termination of employment and not by subsequent events – here the plaintiff was terminated prior to the pandemic starting.  However, in assessing whether the plaintiff mitigated his losses, the Court stated that economic factors “arising post-termination, such as those from the COVID-19 pandemic, can be relevant to mitigation if they impact the availability of equivalent employment” (para. 27). In this case, the plaintiff’s evidence that the pandemic affected his ability to find work was accepted by all parties.

TAKEAWAYS FOR EMPLOYERS

• The notice period increases for employees who are 50 years of age or older;
• For “short service” employees the length of service is less important when calculating the notice period;
• The COVID-19 pandemic might affect an employee’s duty to mitigate if it negatively affects their ability to secure alternative employment. However, each case is fact specific, and not all employees will be able to rely on this since many industries and job opportunities were not negatively impacted by the pandemic (some were in higher demand);
• Economic circumstances at the time of termination may be a factor, although they are not to attract undue influence (where employees were terminated after the pandemic started the notice period might be influenced by the conditions).

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 cdd@ksw.bc.ca.

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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BY: Chris Drinovz, Partner, Employment & Labour Group

Our Employment & Labour Group works closely with local businesses and Human Resource professionals to help them deal with existing problems or complaints initiated by employees. Often times, through careful planning Employers can avoid these issues all together, along with the hefty legal fees that are involved in resolving a legal battle.

We have launched a new series called HR Done Right! Tips from an Employment Lawyer, where in this article as well as across our social media accounts (@kswlawyers) we will add weekly tips that can assist Employers in thoughtful workplace management, and hopefully assist with keeping the complaints away!

Our Group regularly hold seminars and presentations on Employment, Labour and Human Rights topics, so don't forget to sign up to our quartely newsletter to make sure you don't miss out on the event notifications! Please don't hesitate to email us any comments, feedback or suggestion on future topics!

HR DONE RIGHT! TIPS FROM AN EMPLOYMENT LAWYER

WHY?

It is a fundamental principle of employment law that employees who are terminated without just cause are entitled under “common law” to reasonable notice of termination, or pay if the employer does not want to provide advance working notice.

Where there is no enforceable written employment contract, a court will set the reasonable notice period of up to 24 months, or even more in exceptional circumstances, taking into consideration their age, years of service, position, the job market, and other factors.

Employers are permitted to circumvent the reasonable notice that a court would otherwise award by specifying another period of notice in the employment contract. However, the contractual notice must still comply with the minimum requirements of employment standards legislation.

The difference between what is required at common law versus employment standards can amount to tens, if not hundreds of thousands of dollars. As such, a well-drafted termination clause in a written employment contract is a useful tool for employers to provide both clarity and certainty regarding their obligations upon terminating the employee.

Many employers are unaware of the legal challenges that could occur if an employee doesn't sign their employment contract and policies before their first day of work.When you enter into a new employment relationship with a prospective employee, the consideration you're providing the individual after the contract has been signed, is work (employment), salary, benefits, etc.  In return, the consideration the individual is providing to you is signing off on your terms and conditions and providing you with services.Once the employee starts working, you can no longer offer the consideration of employment in exchange for the sign off, meaning the contract will not be enforceable.WHY DOES THIS MATTER? If a contract is not enforceable, the terms in it are not either, including any limiting termination or severance clause. So if the employer needs to terminate the employee later on, they will have to provide notice or severance pay in accordance with common law (what the Courts say), which results in much longer notice periods (usually months instead of weeks) - see Tip #1.

See Tip #1 and #2 for background.

Modification of a pre-existing contract (verbal or written) will likely not be enforced unless there is a further benefit to both parties. Mere continuance of employment by the employer is not readily viewed by the courts as constituting consideration. There must be adequate consideration and adequate consideration requires something more than the bald promise that the employee will not be immediately terminated if they don't agree to the new terms. Continued employment alone is not regarded as consideration for a new covenant extracted from an employee during the term of employment because the employer is already required to continue employment until there are grounds for dismissal or reasonable notice of termination is given.

Courts have provided some indication as to what is sufficient and insufficient consideration.  A one-time bonus, a raise or combination of bonus and more vacation time can be deemed sufficient consideration for the variation of an employment contract.

No Fault Insurance BC

BY: PETER UNRUH

PROVING YOUR CASE IN COURT: EVIDENCE

At any civil trial in British Columbia, individuals or corporations making a legal claim or claims (i.e. the plaintiff) against another party or parties (the defendant), are required to prove their case in front of the court. This is done by providing legally permitted evidence in court, in order to support what they maintain is owed to them by and as a consequence of the actions of a defendant.

The plaintiff is required to prove their case and do so on a balance of probabilities, in order for the court to award damages against the defendant. Accordingly, a plaintiff in a motor vehicle accident case must prove that the defendant was negligent and owed a duty of care to the plaintiff. The plaintiff must also prove that as a consequence of the negligence of the defendant, damages or losses were suffered by the plaintiff which were caused by the negligent actions of the defendant.

Our legal system requires that a plaintiff who has been injured as a consequence of a negligent driver must put forth to the court evidence concerning the injuries sustained in the accident (a diagnosis), and that the injuries were caused by the Defendant’s actions. The plaintiff is called upon to provide evidence concerning their long-term medical outlook (or their prognosis). The plaintiff must prove any losses claimed, such as income loss or other medical expenses that have been endured or reasonably could be incurred in the future, in order to be awarded such types of damages against any defendant.

USING EXPERT OPINIONS

In most motor vehicle accident claims, experts are utilized to provide opinions in court on issues relating to negligence or the damages flowing from the negligence.  Experts in accident reconstruction can help determine how the accident occurred and who may be at fault.  Medical experts can be used to prove the nature of the plaintiff’s injuries, including cause and prognosis.  The defendant is entitled to respond to those expert opinions by providing the court with their own experts who offer a different perspective from that of the plaintiff’s experts.  Again, the plaintiff is required to prove their case in order to be awarded damages.

Our courts require such proof as a matter of fairness and justice to all parties.  In so doing, our courts also have strict rules concerning the types of evidence which can be utilized to prove or disprove claims made in our courts.

COSTS ASSOCIATED WITH EXPERTS

Proving a case in court or providing expert evidence for the purposes of settling a claim out of court can be an expensive proposition.  Experts are paid considerable sums of money for their opinions, which are set out in their reports.  They are paid even more for their attendance at court.  There are many expenses which are paid and go well beyond experts’ fees in order for a plaintiff to successfully prove their losses arising form a motor vehicle accident.  If successful, the plaintiff is entitled to the reasonable recovery of those expenses which have been necessarily incurred to prove their case.  Such expenses are otherwise know as disbursements.

NEW LAW LIMITING RECOVERY OF DISBURSEMENT FEES

On February 12, 2021, on behalf of the Attorney General of British Columbia, David Eby, the NDP government sent out a brief communication which entirely changed the law concerning the recovery of disbursements.  The law exclusively applied to disbursements in motor vehicle accident cases.  Effectively, what the NDP have done, is severely limit a successful Plaintiff’s right to recover the disbursements which have been necessarily incurred to prove their claims.

The NDP specifically limited those plaintiffs making motor vehicle accident claims from recovering any more than a meager 6% of their disbursements, based on either the amount of the court award or the settlement amount if the matter does not proceed to court.  Essentially, this means that if a person goes to court and successfully obtains a judgement against a defendant in a motor vehicle case, (or settles prior to court) they will come nowhere close to recovering the court expenses they have paid to successfully prosecute their claim.  For example, if a plaintiff successfully receives a judgment of $100,000 at trial, they are limited to recovering $6,000 in trial expenses despite the fact that their trial expenses may be thousands of dollars in excess of that figure.

ICBC, on the other hand, can spend almost endlessly to defend a case, seemingly without consequence.  For example, they can needlessly deny liability claims and force the plaintiff to present expensive accident reconstruction evidence.  In my experience, ICBC almost always denies the nature and extent of the plaintiff’s injuries, often suggesting that the plaintiff is in no worse position than before the accident.  Again, the plaintiff bears the burden of proving their case and must hire medical experts.  Under the onslaught of defences raised by ICBC, a plaintiff could prove their case, receive a just award, but be bankrupted in the process because Minister Eby has severely limited their right to collect the costs of running a fair trial.   Given the massive finances of ICBC, the 6% rule would have no effect.  They can afford to spend dramatically unequal amounts on defending claims.

The NDP government and ICBC, through this legislation, have so heavily stacked the odds in favour of ICBC that most British Columbians will likely no longer be able to access the courts for justice.  They simply will not be able to afford the process, even if they fully succeed in court.  Similarly, British Columbians will be unable to afford to challenge the findings of liability or even meaningfully pursue a reasonable settlement for their losses.  This was the apparent intent of Minister Eby.

The NDP government has, through these most recent arbitrary and vindictive changes to our laws regarding recovery of court expenses, effectively undercut any realistic attempt by British Columbians involved in motor vehicle accidents to challenge ICBC and have a just outcome to their case.  Accident victims will likely be unable to afford to meet the primary requirement of motor vehicle litigation, which is to prove ones’ case, because they cannot get those expenses back from ICBC at the conclusion of their case.

Again, these changes only apply to one set of cases, which are motor vehicle accidents, and the changes intentionally only benefits one entity which is ICBC.  With these changes legislated by the NDP, British Columbians involved in motor vehicle accident cases seem completely handcuffed in terms of the evidence they can bring to court or otherwise use to prove their case.

WHAT ARE THE EFFECTS OF LIMITING RECOVERY OF DISBURSEMENTS?

The effects are far reaching and dramatic.  The NDP has, for example, made it extremely difficult, if not impossible, for non-English speaking plaintiffs to prove their case in court as they will likely receive only a fraction of the interpreter/translator fees which necessarily need to be paid in order to have evidence translated  into the English language.  Low-income and moderate income earners are further disadvantaged by these changes.  That is because a successful plaintiff in a motor vehicle case will only receive a fraction of the costs they will incur in order to prove their injuries.  They will be unable to afford to have their cases heard or even prosecuted against an ICBC represented defendant.

Sadly, that is the intent of the NDP legislation.  It is specifically designed to prevent a specific class of claimants, (those involved in motor vehicle cases), from being able to access justice.  It specifically and dramatically benefits ICBC.  This egregious attack on victims of motor vehicle accidents has all been done through the arbitrary stroke of a pen by the Attorney General Eby.

What is worse is that at the same time, victims of motor vehicle accidents are up against an incredibly powerful and monolithic Goliath known as ICBC.  In am finding that this Crown Corporation is currently as aggressive and adversarial in defending claims as at any time I have experienced in my thirty years of practicing law in British Columbia.  ICBC has instituted a system by which any offers made to victims of car accidents are based on internal ICBC criteria crudely referred to as a “meat chart”.  In so doing, I am finding that ICBC refuses to consider the individual suffering, circumstances or personal experiences of the accident victim or the effect of the accident on the victim’s family.  They simply do not seem to consider the actual victim of a car accident.  I have found lately that ICBC offers are, at times, ridiculously low and bear no relationship with the true suffering, disability or effect the accident may have had on the claimant.  As a consequence, I am finding that my clients are being forced into trials they do not seek.  Thankfully, the judges who heard some of my recent court cases came to a much better understanding of the true difficulties my clients were facing.

SOME CLIENT EXAMPLES AND TALES FROM THE TRENCHES

In recent a recent trial my client received an offer of just under $32,000.  We went to trial and I obtained judgment on her behalf of over $192,000.  In another trial my client was offered just over $42,000 and we were forced to go to trial, where I obtained judgment on behalf of my client in excess of $220,000.  In another recent judgment I obtained a judgment on behalf of my client in excess of $1,200,000 beyond ICBC’s offer.  Most recently, I obtained a judgment for over $317,000 on behalf of my client.  ICBC’s offer was just over $46,000.  In each of these cases, my clients did not want to go to trial but ICBC were incredibly intransigent and would not negotiate.  ICBC had followed their “meat chart” and seemed entirely disinterested in the experiences or losses my clients had incurred due to a negligent driver.  In each case, ICBC had poured enormous resources into investigations of my client, their own expert fees and their defence costs.  They were prepared to defend the callous positions they took at any cost.

WHAT’S NEXT?

Now, it seems, the NDP along with ICBC have determined that they must stack the deck even further against the motoring public in British Columbia.  For accident victims in British Columbia, they will now be required to pay most of the costs associated with proving their claims, particularly those who decide not to accept ICBC’s “meat chart” offers (should such an offer even be made).

ICBC has enormous financial resources and power at their disposal.  They have apparently been encouraged by the NDP to use their enormous financial resources against victims of accidents in this province, without much of any oversight, except by our courts.  They have been granted unparalleled access to the personal information of anyone driving in British Columbia or anyone involved in an accident on a B.C. roadway.  They have access to all driving records.  They can access the medical information of claimants.  They often easily obtain all manner of personal information as well.  ICBC has enormous resources which are dedicated to hiring investigators to follow and film claimants during their daily activities.  They are quite effective in conducting online investigations of claimants.  ICBC can and does easily absorb these types of costs.

The net effect is that such activities are largely designed to undermine, intimidate, cajole or at the very least, embarrass accident victims who have done nothing wrong other than to have had the grave misfortune to be in the path of a negligent driver.  This becomes even more tragic now that the NDP is attempting to limit accident victims to recovering only a fraction of the expenses that were necessarily incurred to successfully prove their motor vehicle claim in this province. This is an unparalleled assault on accident victims and their access to justice.  There is no balance or equality in any of what the NDP has done to assist ICBC.

The NDP is effectively attempting to nullify the voices of those who disagree with the way they have been treated by ICBC.  They are attempting to deny motor vehicle accident claimants the right to prove their case by denying them the right to recover their reasonable and necessary litigation expenses.  We will fight these changes with every measure available to us.  We hope we will prevail against this injustice.   I will have more to say on this issue in the next few weeks.

But let me leave you with one final thought.  

If the NDP can go to such lengths to try to tip the scales of justice so much in favour of ICBC, the question becomes which group of litigants is the next target for the NDP and Minister Eby?  Who shall the NDP next try to strip of legal rights to the point that they cannot access justice or defend themselves, and which massive Crown Corporation or government agency will be the beneficiary?

 Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact Peter Unruh.