Written by Michael J WeilerTerminating a short service employee, especially a highly paid manager, is usually the result of the employer failing to exercise due diligence in the hiring process. Often, employers don’t worry about such a termination, because they believe if they terminate a short service employee, without cause or notice, the notice period and damages for dismissal will be minimal. This is a mistaken belief that can be costly.As readers of this blog know, there are 4 key criteria the courts will use to consider what would reasonable notice be in the absence of a written enforceable agreement. Those factors, first identified in the Bardal decision, are:

1. Age
2. Length of service
3. Position with the employer
4. Availability of alternate similar employment

On occasion, Courts will also consider other factors (e.g., inducement)[1].The following three recent cases are a clear reminder of how short service employees can often end up with lengthy notice periods and large damage awards:Greenlees v Starline Windows

• Age – 43 years old
• Length of Service – 6 months
• Position – salesman
• Other factors – Inducement found to be a key factor

Decision – 6-months notice $100,000 damagesCorey v Kruger[2]

• Age – 58 years old
• Length of Service – 2 ½ years
• Position – maintenance supervisor (first level of management)
• Other factors – Age and lack of jobs key factors

Decision – 8 months notice $100,000 damagesChapple v Big Bay Landing

• Age: 61 years old
• Length of Service – 26 months
• Position – manager of a lodge—considered senior position
• Other factors – Inducement NOT a factor nor was the fact he had to move to Campbell River

Decision – 9 months notice $85,000 damages plus housing allowance (but no bonus nor consequential damages for loss on his mortgage).Other Relevant Points: After reviewing the cases raised by each party (see below), the Court noted that the cases relied upon by the Plaintiff (employee) involved employees with much higher salaries (this is not usually considered a factor) and that the cases relied upon by the Defendant (employer) focused on much shorter notice.Arguments raised at Trial:

• Defendant (employer) argued 3-5 months: The defendant paid three weeks’ salary to the plaintiff as pay in lieu of notice when he was terminated and argued that pay in lieu of notice in the amount of three to five months was reasonable in the circumstances. The defendant relied on the following judgments:Hall v Quick Silver Resources; Saalfeld v Absolute Software; Cabott v Urban Systems Ltd; and Pakozdi v B & B Heavy Civil Construction
• Plaintiff (employee) argued 12 months: In contrast, the plaintiff claimed he was entitled to payment of 12 months’ pay in lieu of notice relying on: Sollows v. Albion Fisheries (see: footnote 2); Waterman v Mining Association of BC; Taner v Great Canadian Gaming; Dobbs v The Cambie Malone’s Corp; Porter v Fleischer; Mackie v West Coast Engineering; Mitchell v Paxton Forest Products; and Munoz v Sierra Systems.

WHAT’S AN EMPLOYER TO DO?You can pay me (or another lawyer) a significant fee to fight these cases after the fact and also potentially end up paying the dismissed employee a large award of damages;ORFor those readers of my Blog old enough to remember when we used records, I am going to sound like a broken record when I say the best approach is to obtain an enforceable written contract, that not only creates certainty for both parties, but can also dramatically limit your liability when it comes to termination.So…pay me now or pay me later.********The content in this blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation.[1] Inducement occurs when an employer actively recruits an employee working for another employer with promises of higher salary, job security, etc. See: Sollows v Albion Fisheries[2] This decision is also noteworthy for its good review of various cases on notice for short term employees

Written by Michael J WeilerIn the January 2018 edition of the Weiler Blog, I reported on the directions given to Labour Minister Harry Bains with respect to introducing new laws related to employment and labour. See: Labour Minister Bains Directed to Address 5 Key Areas – Is this 1992 – “Deja Vu All Over Again?”I noted the following five directives.

1. Establish a Fair Wage Commission to support the work of implementing the $15-per-hour minimum wage by 2021 and to bring forward recommendations to close the gap between the minimum wage and livable wages. The commission will make its first report within 90 days of its first meeting.
2. Create a Temporary Foreign Worker registry to help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.
3. Update employment standards to reflect the changing nature of workplaces and ensure they are applied evenly and enforced.
4. Review and develop options with WorkSafe B.C. to increase compliance with employment laws and standards put in place to protect the lives and safety of workers.
5. Ensure British Columbians have the same rights and protections enjoyed by other Canadians by reviewing the Labour Code (sic) to ensure workplaces support a growing, sustainable economy with fair laws for workers and businesses.

Not many legislative changes have been made since then. The minimum wage was increased as expected and certain changes were made to the Employment Standards Act dealing with pregnancy and compassionate leaves. No other major changes were enacted. In my view, all of this will change dramatically in the fall and/or spring sessions of the legislature. Employers hang on to your hats.UPDATE ON THE FOREGOING MATTERS The following is a brief update of the five areas Minister Bains was directed to review:

1. Minimum Wage

As expected, the NDP implemented the changes recommended by the Fair Wage Commission that was struck to advise on how (not if) the minimum wage should be increased to $15. The first increase of $1.30 per hour, raising the minimum wage to $12.65, took effect June 1st, 2018, with the final increase to $15.20 to take effect June 1st, 2021. Further areas will be considered by the Fair Wage Commission, such as addressing the discrepancy between the minimum wage and a living wage in BC. What is interesting is that BC followed, to some extent, Ontario, but now it has been reported that the Doug Ford government will be putting future increases on hold.

2. Temporary Foreign Workers Registry

On October 11th, 2018, Minister Bains was quoted in the Vancouver Sun as saying that the government would introduce legislation in this area in the coming weeks. It appears from the Minister’s comments, that the goal of the government is to not just track temporary foreign workers, but also to create some sort of enforcement mechanism. He stated that the legislation would pave the way for the registry “to better support vulnerable foreign workers by tracking both the employers and the foreign worker recruiters.”It appears from this newspaper report that the legislation will be directed at employers and recruiters and the purpose of such legislation will not be just to track foreign workers but also to enforce laws with respect to “vulnerable foreign workers” (however that term might be defined). This, in turn, will likely create yet another layer of regulation for employers, especially small employers, who cannot recruit Canadian workers and therefore rely on temporary foreign workers. We will keep you posted.

3. Employment Standards

In June 2018. the BC Law Institute (BCLI) issued its first consultation paper and sought submissions. The Report is 407 pages and includes 78 recommendations of which 57 recommendations are consensus recommendations. It follows years of analysis by a large group of lawyers and professionals. Needless to say, it is an exhaustive report. The BCLI conducted a consultation process which closed August 31st, 2018. The BCLI has indicated it will complete its final report at least by early next year. I would assume we will see changes to the Employment Standards Act in the spring 2019 session of the legislature. Although it appears the Report is reasonably balanced, the reality is that, given the fact that the Employment Standards Act is there to protect workers’ rights, (not the rights of employers), the overall impact of the changes will likely adversely affect employers. I will provide a detailed analysis once the legislation is introduced.

4. WorkSafeBC

As expected, the Minister has appointed new members to WorkSafeBC’s Board, including a new chair. The government is also embarking on an ambitious project of renumbering and modernizing the language of the Workers Compensation Act to make it easier to read and understand. The new Act is expected to be law in March 2019. While it is not intended to make any substantive change to the laws, there might well be issues of interpretation arising from the amendments.The Board commissioned a Report by Paul Petrie to consider enriching and broadening the compensation for injured workers. The goal was to provide a worker-centred approach. The Board published the Petrie Report in April. Mr. Petrie made 41 recommendations and suggested that further reviews be conducted. The Report can be accessed here: https://www.worksafebc.com/en/resources/about-us/reports/restoring-balance-worker-centered-approach?lang=enThe Board has directed the Policy, Regulation and Research Division to undertake an analysis of the 41 recommendationsThe recommendations in the Report, especially in the area of chronic pain and mental disorders. are very troubling. The cost implications of implementing these recommendations have yet to be analyzed.The Minister has indicated he may ask for a review of the Act but, to date, has not done so.I expect that further review, followed by legislation, will be introduced in 2019 – possibly as early as the spring session – as this file is a top priority for the NDP.I am a member of an employers’ group that provides important advice and representation of employers on WorkSafeBC matters. I urge all employers to consider joining the Employers’ Forum. If you are interested, you can contact Doug Alley at the Employers’ Forum [email protected]. and/or access their website at https://www.employersforum.org/.

5. Labour Relations Code

In 1992, a 3-person panel, delivered a report to the then newly elected NDP government recommending numerous and fundamental changes to the Labour Relations Code. The government introduced many changes that favoured unions. As a result, unionization in this province flourished until the Liberals made changes in 2002.In February 2018, Minister Bains appointed a 3-person panel to review the Labour Relations Code. The Labour Review Panel finished its deliberations and produced a comprehensive Report on changes to the Code. That Report was given to Minister Bains on August 31st, 2018. For some unexplained reason, the Minister, as of the writing of this blog, has not released the Report. No explanation for this lengthy delay has been offered.I expect that the Government will introduce fundamental changes to the Code in 2019. I will, of course, provide a summary of the Report’s recommendations and then on any subsequent legislation. Employers should start now to prepare for potential changes, including the potential removal of the secret ballot vote.COMMUNITY BENEFITS AGREEMENTIn addition to the above initiatives, the NDP has taken steps to change how large construction projects undertaken by the Government will be carried out, starting with the building of the Pattullo Bridge. The government will use project labour agreements to build large publicly-funded infrastructure projects. It has been reported that this approach will raise the cost of construction by hundreds of millions of dollars. It will require workers to join the Building Trades unions if they want to work on these projects. Many contractors are being shut out. Non-union employees and non-Building Trade unions, such as CLAC, will be denied the right to work on these projects. The requirement that all employees must be members of the Building Trades unions appears to be a pure gift to the Building Trade Unions.Some might argue that if they are not in the construction business, this will not directly affect them. But such a view is short-sighted. Not only will the Building Trades capture a large portion of construction activity they had previously lost, but the coffers of the unions will also be filled and may be used for other purposes, such as organizing non-union workplaces.The Independent Contractors and Businesses Association, the BC Chamber of Commerce, a number of contractors and CLAC have started an action in the Supreme Court of British Columbia by filing a Petition challenging the “Building Trades only” provisions of the project agreement. They argue that the imposition of such a requirement is an unreasonable and ultra vires exercise of statutory discretion and, further, it is a violation of the Canadian Charter of Rights and Freedoms. The Petition makes for interesting reading and reflects a very well-thought-out argument by counsel for the Petitioners. For those who would like to review the Petition, please email me at [email protected] and I will send you a copy.SUMMARYLots will happen in the next few months that will adversely affect employers. I will continue to report on these developments. But I urge all employers to become aware of these changes as they are introduced and be ready to address them in your business.

Written by Michael J WeilerDON’T BOGART THAT JOINT MY FRIEND, PASS IT OVER TO ME (WITH APOLOGIES TO COUNTRY JOE AND THE FISH)On October 17th, 2018, the federal government will legalize some, but not all, possession and use of recreational marijuana. This fundamental change to marijuana laws will have potentially significant consequences for employers and their employees. The uncertainty created by this change will make it difficult for employers to cope with the potential negative impacts of the increased use of marijuana by employees both at work and outside of work.I note that numerous articles, blogs and newsletters by law firms, accounting firms and consultants devoted to the legalization of marijuana have recently been published. Many law firms are putting on seminars to probe the dos and don’ts for employers. The flurry of activity by lawyers and consultants in this area should be cause for concern for employers. As I often note “anytime your lawyer says, ‘now that is an interesting question’, you better get ready to take out your cheque book”! The legalization of marijuana will raise many “interesting questions” for employers as they try to navigate the new world of Cheech and Chong.It is not possible to review, in this blog, all the issues related to the partial legalization of marijuana and how that might affect your workplace, nor is it possible to provide legal advice in this blog to employers on these very complex and potentially costly issues. Each workplace must be considered on its own facts. What I have attempted to do here is highlight some of the critical issues and facts to assist employers, especially in assessing their current policies and strategies. I welcome any questions you might have on any specific topic herein.Because this is a longer article than I usually write, primarily due to the many issues and uncertainties arising from the legalization of recreational marijuana, and while I hope those most affected will read all of it, I have also included a short “executive summary” for each topic. WHAT YOU NEED TO KNOW

1. Why increased use of marijuana is, in fact, a “big deal”

Executive Summary

• Marijuana is a mind- and mood-altering drug
• Legalization will most likely lead to more users as such use becomes “normalized”
• The Supreme Court of Canada has confirmed that it causes alteration of mental function.

Some commentators suggest that the legalization will not change how employers manage or control their operations. While that may be correct in some instances, the reality is there will be significant changes in your workplace, largely because marijuana is not like alcohol or any other legal drug. All at once, many people, including younger people, will be smoking or consuming marijuana as a normal aspect of their daily lives.In a recent, insightful column in the September 29th, 2018 edition of the Globe & Mail, Margaret Wente highlighted the problems that the country will face. Under the headline “The downside of legalization: More potheads” she noted, “It’s not fashionable to say so but pot is bad for you”. She stated:“Cannabis is like any other addictive substance. Legalization normalizes it and normalization inevitably increases the user base. The more people who try it the more will become dependent….…anyone who says we can escape the downsides of legalization must be working for Big Pot—or government. Justin Trudeau assures us that a controlled and regulated market will reduce access among youth. But I think anybody who thinks marihuana use among teenagers will magically decline must be smoking something.”Many will say it’s no big deal to make marijuana legal because it does not have negative effects. That is simply nonsense. Cannabis is a mood- and mind-altering substance. The Supreme Court of Canada has acknowledged the significant impact of marijuana in R v Malmo-Levine:“All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”. That, indeed, is the purpose for which the appellants use it. Certain groups in society share a particular vulnerability to its effects. While members of these groups, whose identity cannot, in general, be distinguished from other users in advance, are relatively small as a percentage of all marihuana users, their numbers are significant in absolute terms. The trial judge estimated “chronic users” to number about 50,000. A recent Senate Special Committee report estimated users under 16 (which may overlap to some extent with the chronic user group) also at 50,000 individuals (Cannabis: Our Position for a Canadian Public Policy (2002) (the “Senate Committee Report”), vol. I, at pp. 165-66). Pregnant women and schizophrenics are also said to be at a particular risk. Advancing the protection of these vulnerable individuals, in our opinion, is a policy choice that falls within the broad legislative scope conferred on Parliament.”[para 3]It is also possible that the higher usage of marijuana could lead to more use of illegal drugs such as cocaine. All of which will have consequences for employers.

2. Legislative framework

Executive Summary

• Bills C-45 and C-46 will, as of October 17th, 2018, regulate production, distribution and sale of recreational marijuana (the laws relating to trafficking and higher amounts remain unchanged)
• The Provinces have set different rules regarding consumption and distribution. For example, the legal age in BC is 18 but, in Quebec, it is 21
• Edibles are not yet legal (although it is expected they will be within a year)
• Edibles create an additional issue in that the user may be unaware of the strength (and therefore level and duration of impairment) of the drug they’re consuming
• Despite the tests of impairment contained in Bill C-46, Canadian police forces are not ready to use the blood testing program nor are they rushing to obtain the only approved testing device
• Marijuana is different from alcohol in that both law enforcement and employers have no effective means of testing a user to ascertain that he or she is impaired
• Detection by employers is also a significant problem, and will likely worsen with legalization of edibles
• So far, we don’t know how insurers will manage accidents where it is proved that the driver consumed marijuana

Previously, medical use of marijuana has been legal based on the period and usage defined by the employee’s physician. Currently, recreational marijuana is a banned substance under the Controlled Drug and Substances Act. This will change on October 17th, 2018. At that time, Bills C-45 and C-46 will provide legal access to marijuana and will control and regulate its production, distribution and sale. As a result, adults will be allowed, in certain circumstances, to produce, possess and access regulated and quality-controlled marijuana for recreational purposes.The legalization of marijuana is limited and is strictly controlled – methods of consumption and amounts of legal possession are limited by the legislation. For example, commercial edibles are not legalized, although it is expected they will be legalized within a year. The delay in legalizing edibles reflects the uncertainty in allowing the use of marijuana. For example, impairment effects from edibles may be delayed for many hours, so a user might not realize how potent the amount of THC (the active ingredient in marijuana/cannabis), is, and be impaired at any time without realizing it. Other issues related to edibles include ensuring consistency of the THC in the product.Under the legislation, users:

• will be allowed to purchase cannabis only from regulated distributors;
• can only carry 30 grams of legal dried cannabis; and
• in BC, can grow up to 4 cannabis plants at home and make cannabis food and drink at home. (But see restrictions in BC regulations below)

The provincial regulations are still being drafted and refined as the deadline date approaches. The result will be a hodgepodge of regulations across the country that must be consistent with the federal statutes. For example, the legal age of access to marijuana will vary by province (BC is 19 years; Quebec is 21). Regulations on the growing of marijuana at home vary. Quebec will forbid growing pot at home while BC will allow adults to grow up to four plants per dwelling, but landlords can disallow cultivation and use by tenants.Bill C 46 deals with the blood drug concentration levels within 2 hours of driving and various offences committed by exceeding such levels. Despite the fact that the federal government has provided a clear definition of what will constitute impaired driving, and a legislated shortcut (which will very likely be challenged under the Charter), Canadian police forces are not yet ready to use the government-approved blood testing program, nor are they rushing to use the only approved testing device. Accordingly, in many jurisdictions, police will rely on traditional tests such as urine tests, and other sobriety tests. Once again, with the rush to legalization, the devil remains in the details, which only creates more uncertainty.Unlike alcohol, the difficult problem employers and law enforcement officials face is that there are really no effective means of testing an employee to see if she or he is truly “impaired”. Detection is also a significant problem and will be an even bigger problem once edibles are legalized.It is not clear how insurers might deal with accidents where it is proven that marijuana had been consumed by the driver(s).

3. The obligation to maintain a safe worksite

Executive Summary

• All employers in BC have a legislated duty to provide a safe workplace
• An employer is prohibited from allowing a person to remain at the workplace when that person’s ability to work is affected by alcohol, a drug or any other substance so as to endanger that person or anyone else
• An employee must report their impairment to the employer and cannot be assigned to any activity that may create undue risk
• Without a strict policy, it is difficult to see how an employer will be able to abide by the legislated duty to provide a safe workplace
• Allowing employees to use marijuana in the workplace creates potential liability for an employer for any hurt to the employee or others resulting from such use (see Jacobsen v Nike Canada below) where an employee was seriously injured driving home after consuming alcohol provided by the employer at the workplace – will those tests be applied for marijuana use? No answer yet.

Legalization is not just a concern about productivity that will be negatively impacted by the increased use of marijuana both during and before work. It raises potentially serious safety issues for employers.The obligation on employers in BC to provide a safe workplace is covered by the Occupational Health and Safety Regulations. For example, section 2.2 of the OH & S Regulations provides:2.2 General dutyDespite the absence of a specific requirement, all work must be carried out without undue risk of injury or occupational disease to any person.Similarly, Regulation 4.20 provides:4.20 Impairment by alcohol, drug or other substance(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.(3) A person must not remain at a workplace if the person’s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons.Note: In the application of sections 4.19 and 4.20, workers and employers need to consider the effects of prescription and non-prescription drugs, and fatigue, as potential sources of impairment. There is a need for disclosure of potential impairment from any source, and for adequate supervision of work to ensure reported or observed impairment is effectively managed.Further, employees have certain obligations under the regulations including Regulation 4.19 which provides:4.19 Physical or mental impairment(1) A worker with a physical or mental impairment which may affect the worker’s ability to safely perform assigned work must inform his or her supervisor or employer of the impairment, and must not knowingly do work where the impairment may create an undue risk to the worker or anyone else.(2) A worker must not be assigned to activities where a reported or observed impairment may create an undue risk to the worker or anyone else.It is difficult to see how an employer can abide by these obligations absent a strict policy on marijuana.There are also potential issues of liability of employers who allow employees to use marijuana at the workplace or while at workplace functions. If marijuana is introduced and accepted in the workplace then the employer is potentially liable if, for example, the employee hurts herself or someone else driving home from a work function impaired. If the “beer after work” perk is replaced with the joint of marijuana, employers might become liable for accidents.The leading case in British Columbia on employer liability in this area is Jacobsen v Nike Canada. The employee, a 19-year-old warehouseman, worked 16 hours in his job as a warehouseman. During working hours, he and his fellow employees drank substantial amounts of beer which were provided by Nike. After work, he and his friend visited two clubs and drank more beer. He had a car accident while driving home which rendered him a quadriplegic. The court held Nike liable for breaching its duty of care to the employee.The court stated, at paras 54 and 55:Nike required the employees to bring their cars to work and knew they would be driving home. In effect, Nike made drinking and driving part of the working conditions that day. It effectively encouraged the crew to drink without limit by making freely available large amounts of beer in an atmosphere which induced thirst and drinking games. The supervisors, Mr. Agostino and Mr. Prasad, drank along with the crew and made no attempts to restrict or monitor the amount the plaintiff or any of the other crew members drank. No one told the plaintiff that some of the beer was intended for customers later in the weekend.Nike’s responsibility to the plaintiff went beyond watching for signs of impairment and taking steps to prevent him from driving if it observed any such signs. Its responsibility for his safety required that it not introduce into the workplace conditions that it was reasonably foreseeable put him at risk. It is hard to imagine a more obvious risk than introducing drinking and driving into the workplace. If an employer allows its employees to use marijuana in the workplace, whether on paid or unpaid time or at work-related functions. it raises another one of those “interesting questions” employers will face. Will the employer be liable if the employee subsequently is involved in an accident? Will employers have to reconsider their holiday party policies as they relate to the use of marijuana? Again, the reality that has to be considered is that it is likely more and more of your employees will start using marijuana as part of their normal lives.

4. Marijuana, Impairment, Detection and Workplace Policies

Executive Summary

• The ability to detect or assess impairment arising from the use of marijuana is very different from the use of alcohol. Accordingly, employers will have to consider whether their current policies will be sufficient
• The RCMP have banned it for 28 days before gun-carrying officers can report to work, whereas Vancouver is only requiring police officers to be “fit for duty” when they show up for their shift – this is similar to alcohol policies that allow use outside working hours so long as the employee shows up sober for work
• A recent grievance arbitration dealt with an employee’s use of prescribed marijuana for what was accepted to be a disability. Although the employee said he didn’t feel impaired, he failed the drug test and was denied employment. The arbitrator held that the difficulty of measuring impairment made the employee an unacceptable safety risk and held that the employer had met its duty to accommodate obligation. See Section 5 below for a further discussion of the duty to accommodate and complaints under the Human Rights Code of BC

The key difference between marijuana/cannabis use and alcohol is the fact that detection of impairment in the latter is fairly certain whereas there are no real effective tests for impairment for those who use marijuana. The inability to assess impairment for marijuana use has led to a wide variety of employer-imposed restrictions and prohibitions.The best example of this is seen in the various police departments. According to an October 8th, 2018 Globe & Mail report, the RCMP will make it almost impossible for gun-carrying officers to consume cannabis. The workplace policy will call on Mounties to refrain from consuming cannabis for 28 straight days before a shift. The position will place the national police force among the most restrictive in Canada.The RCMP’s position highlights major differences among federal organizations on the use of cannabis by their employees, as the Canadian Armed Forces have announced that most members will be allowed to consume eight hours before a shift.There are also divergent policies among police organizations, with the Calgary Police Service adopting a complete “abstinence” policy in terms of cannabis use by its officers, whereas police services in places such as Ottawa and Vancouver will only require officers to be “fit for duty” when they show up to work. The policy in those organizations will be similar to the one regarding alcohol use, which is allowed outside of working hours as long as officers are sober when they arrive at work.The problems with accurately assessing impairment for marijuana users was used in one recent case to uphold an employer’s ban on hiring anyone who tested positive for marijuana when applying for a job in a safety-sensitive position. The case provides a thorough analysis of the assessment of impairment for marijuana users.In Lower Churchill v IBEW Local 1620 )(Tizzard grievance), the arbitrator, appointed under the collective agreement, had to consider the grievance of a worker who applied for what was found to be a safety-sensitive labourer’s jobs. The worker was diagnosed with Crohn’s disease and osteoarthritis. His physician issued him a Medical Authorization for up to 1.5 grams of cannabis with THC levels of up to 22% to be ingested by vaporization. He took the marijuana every evening and said he did not feel impaired the next day. The grievor failed the pre-employment drug test and was denied both jobs. The Union grieved, arguing the employer had failed to accommodate the employee’s disability.One interesting point, in this case, is the fact that the arbitrator examined significant medical evidence, including the evidence of doctors and various publications, and found that residual cannabis impairment might last for more than 24 hours. The arbitrator found that there was no available testing that allowed an employer to measure impairment from cannabis use on a daily or other regular basis. The employer here had a duty to accommodate (“DTA”) but, since it could not accurately measure marijuana impairment, it could not adequately manage the safety risk arising from the use of marijuana. Accordingly, this inability to measure impairment created an unacceptable safety risk and thus the employer had met its DTA obligations and the grievance was dismissed. The fact the worker said he felt ok was insufficient evidence. The arbitrator concluded (at p. 65):As a result of the foregoing, the Grievance is denied. The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the job site. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.[1]

5. Do employers have a duty to accommodate all recreational marijuana users?

Executive Summary

• No
• The duty to accommodate arises under the BC Human Rights Code where an employee has a disability (resulting in a Medical Authorization and an employer assessment to see if the duty to accommodate has been met). Currently, where an employee has a medical authorization, for the use of marijuana, an employer assessment will be required to ascertain whether the duty to accommodate can be met
• Addiction to marijuana constitutes a disability
• The test for duty to accommodate requires accommodation unless to do so would constitute “undue hardship” on the part of the employer – a difficult standard decided on the individual facts
• While non-union employers have no duty to accommodate when no disability exists, unionized employers may have difficulty enforcing a total ban or a ban for a certain period of time prior to showing up for work
• The fact of disability can be challenged if the facts warrant it
• Even if the employer is unaware of a disability, it may have a duty to inquire in some circumstances
• Key to protection is a well-drafted employee manual

The answer is no. The DTA only arises under the BC Human Rights Code when the employee has a disability. In cases where the employee has a disability that results in the issuance of a Medical Authorization, then the employer must conduct an individual assessment to see if the DTA has been met. If an employee is addicted to marijuana, the DTA will arise as addictions are considered to be disabilities. Given the increased use and acceptance of marijuana and its mind- and mood-altering effects, it is likely more employees will become addicted.The DTA requires the employer to show that it has accommodated to the point of “undue hardship”. That is often a difficult onus to overcome. As readers of this blog know, what constitutes “undue hardship” is decided on the facts of each case and is, once again, one of those annoying “interesting questions”.The analysis of the employer’s DTA was required in the Tizzard grievance because the marijuana was being taken under doctor’s orders to help deal with Mr. Tizzard’s disabilities. That case had some unique factors, including the conclusion by the arbitrator that the two labourers’ positions were “safety-sensitive positions”. This conclusion made it easier for the employer to satisfy its DTA given the inability to assess actual impairment resulting from the use of marijuana.Absent a disability (or a perceived disability), employers are not bound by the Human Rights Code and therefore are not subject to the DTA. However, even in the absence of a disability, a unionized employer might have problems in enforcing a complete ban on marijuana including any ban for a certain period of time before showing up to work.The conclusion that an employee has a disability should not just be accepted by an employer -depending on the facts, this might be challenged. Further, the lack of awareness of a disability by an employer, might not relieve an employer of liability under the Human Rights Code. For example, in certain circumstances, an employer might be under a duty to inquire as to whether an employee has a disability if it is alerted to a problem.Most well-drafted policy manuals address the issue of disclosure on the part of the employee. If the employee chooses not to disclose a disability and the use of marijuana, he or she might not be able to later argue that the employer should have made inquiries as to his or her medical condition. An employee who does not make the employer aware of a disability runs a risk.In a recent Human Rights case, Burton v Tugboat Annie’s Pub, the Tribunal noted, at para 65:The [BC Human Rights] Tribunal has stated that an employer must be aware of an employee’s disability or ought reasonably to be aware, before a duty to accommodate will be triggered…

6. What about employees who work at workplaces other than that of the employer?

Executive Summary

• Where an employee works at a workplace owned by someone other than an employer, he or she may be bound by the marijuana rules of that workplace
• The fact that an employee is at another owner’s workplace might not defeat a human rights claim brought by that employee against the owner and the employer (See: “SCC once again expands the scope of human rights code to protect employees” blog post January 2018 http://weilerlaw.ca/scc-once-again-expands-scope-of-human-rights-code-to-protect-employees/)

Many employees are assigned to work at some workplace other than that of the employer. This may involve driving to and from such workplaces. If an employee is working at another workplace, he might be subject to the marijuana rules applicable to that worksite. In light of the Supreme Court of Canada’s decision in BC Human Rights Tribunal v Schrenk, the fact that the owner of the workplace may be different than the employer, might not defeat a human rights complaint by such employee against the employer and the other owner [See “SCC once again expands the scope of human rights code to protect employees” blog post, January 2018.Obviously, an employer will want to ensure that the employee who drives during working hours, whether in his car or the employer’s car, is not in any way impaired.

7. Will there be different issues for unionized employers?

Executive Summary

• Yes
• In implementing or enforcing new marijuana rules, the process and results are different for unionized and non-unionized employers
• Unionized employers will have more difficulty in implementing rules and, upon enforcement of those rules, might be confronted with a grievance, a well-funded union and an arbitrator who can order the employee to be reinstated to his or her position
• Non-unionized employers will have greater leeway in implementing rules and, upon enforcement of those rules, is less likely to be confronted by a lawyer arguing the employee’s case and, unless there is a complaint pursuant to the Human Rights Code, there is no jurisdiction to reinstate the employee to his or her position.

The answer is yes. As the Tizzard grievance shows, the process of arbitration arose under the collective agreement – that process would not be required for a non-union employer, who would only be subject to a human rights complaint. The non-union employer will have far greater leeway in imposing zero tolerance rules (subject, of course, to Human Rights concerns). However, a unionized employer will potentially face challenges by its union even in the absence of a human rights issue including many procedural hurdles. For example, workplace rules can only be imposed when the employer satisfies the tests in Lumber & Sawmill Workers Local 2537 v KVP Co. Unionized employers face a heavy onus to justify any type of drug or alcohol testing: see CEP Local 30 v Irving Pulp & Paper.Of course, the biggest problem facing unionized employers is that arbitrators have the authority to reinstate an employee or remove any discipline. Unions are well-financed and can take an employee’s case to arbitration and present it in a professional manner. A non-union employer (other than those who are federally regulated under the Canada Labour Code) will not face the prospects of reinstatement as a remedy by the court in a wrongful dismissal (although, once again, if a complaint is found to be valid under the Human Rights Code, the Tribunal does have the ability to reinstate as a remedy). Further non-union employees are less likely to hire a lawyer to argue their case.

8. Employees entering the USA

Executive Summary

• It is not looking good for employees entering the USA if they are marijuana users
• The situation lacks clarity, possibly due to the rush to pass the new legislation

USA border officers are apparently aggressively enforcing the federal laws that prohibit marijuana use and possession notwithstanding that many states, such as Washington, Colorado and now California, have legalized recreational marijuana. Your employees heading to the USA might well be questioned on marijuana use and, depending on how they answer the questions, they might be turned away at the border and potentially be permanently banned from entering the USA. It is reported that even owning shares in, or working for, a cannabis company might be sufficient grounds for USA authorities to ban entry. In an article in the Vancouver Sun October 1st, 2018, it was noted that the BC government employees who work in liquor stores and sell recreational marijuana might be barred from entering the USA. BC’s Solicitor General Mike Farnsworth was quoted as saying:“We’ve been making it clear to the federal government that this is a serious issue [which he called an] unintended consequence [of Canadian legislation].It’s a real issue and a real concern, and there’s going to need to be a lot of education done about this issue right across the country.We as a province want to make sure that British Columbians understand what it means to cross the border, and to understand the risks, particularly with the Trump administration in power.”There is no clear direction nor solution to this very real problem. However, it appears that the US Border Services are softening its policies in this regard. Unfortunately, the Trudeau government appears to be powerless in effectively addressing this situation to allow free passage to law-abiding Canadians.In an article in the Vancouver Sun on October 10th, 2018 entitled “If you buy cannabis, will Uncle Sam find out?” it was noted that with the purchase of marijuana online through the internet there will be a record of data showing such activity that might well be accessed by US border officials. Again, there does not seem to be clarity on this issue.WHAT YOU SHOULD DOMany commentators are suggesting that most employers can simply rely on their current policies for the use of legal drugs. In my view, that should not be the route to go unless the employer feels their current policies adequately cover the use of marijuana. As noted throughout this article, each workplace and policies must be assessed individually. The argument in not doing anything is, “why rock the boat—this is no different than taking a prescription pill that may have an impact on your ability to work productively or safely.” I disagree.Consider these potential issues:

• What if an employee is at a lunch or social function with an important client and the client offers marijuana. Is the employee entitled to join in?
• How does an employer regulate “on-call” employees?
• Undoubtedly there will be privacy issues raised in the enforcement of any policies. How does the employer balance privacy rights with the need to provide a safe and productive workplace?
• Will the employer expect or require that other employees will tell on fellow employees using or having possession of marijuana or related paraphilia in violation of the policies?
• Will overly restrictive policies negatively affect employee morale?

These are just some of the “interesting questions” (that means legal fees) that should be considered by all employers who want to be pro-active in addressing how the legalization of marijuana will affect their workplace.I offer two suggestions for clients to consider in this new regime:

1. Given the uncertain nature of the level of impairment at any given time and the inability of the employer to adequately detect or measure impairment, I suggest employers consider a blanket prohibition from not only the use and possession of marijuana in any form, from the time they arrive at work to the time they leave, but also a prohibition from reporting to work if they have used marijuana in the previous “X” hours before work. If they have used marijuana in the restricted time period and show up for work, that will be considered a disciplinary offence and subject to discipline up to and including termination for cause. Although proving that the employee has breached this policy will be difficult, the employees know that by showing up for work, they are warranting that they have not used marijuana in the previous “X” hours and that breaching such policy might result in termination – together, that might be a sufficient deterrent. I recommend educating your employees on all aspects of marijuana use and abuse and of your company policies in this regard.
2. Education might well be the key to avoiding problems in the workplace with the use of recreational marijuana. Hold paid training sessions – employees may well buy into any restrictions on marijuana, including a zero-tolerance policy, if that is what you choose to implement. Ensure that everyone follows the rule -employees, managers and owners. By engaging your employees in a meaningful dialogue, you will likely avoid a number of problems with the use of marijuana while respecting the employees’ rights to use recreational marijuana.

The best means to accomplish these goals is to rewrite employee manuals, employment agreements and collective agreements. However, in the case of a unionized-employer, that will mean consulting with your union to embrace both the new policies and the education programs.***********The content in this blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation.[1] For those readers wanting to explore the differences between marijuana and alcohol testing including the current medical evidence I commend the Tizard decision to you.

Written by Michael J WeilerAs noted in our last blog email, the NDP was inexplicably sitting on the Labour Relations Code Review Panel’s Report dated August 31st, 2018 (“Report”). The Report was finally released on October 25th, 2018. Links to the Report and the Minister’s Press Release are located at the end of this article.The Panel made 29 recommendations for changes to the Code on various subjects. Many of the changes, if accepted by the government, will make it much easier for unions to obtain certifications. The changes are intended, for the most part, to enhance union rights and protections.The most notable changes recommended are:

1. Keeping the secret ballot vote but shortening the time within which a vote must be held to 5 business days from receipt of the application for certification from the existing 10-day period. Note that: (a) the union representative on the Panel dissented on this recommendation, arguing that a card-based certification system should be reinstated; and (b) the shortened time frame will limit the employer’s ability to communicate effectively with its employees prior to the vote.
2. Amendments to sections 6(1) and 8 of the Code to reverse the changes made by the Liberals in 2002 which will significantly restrict employer free speech—it is “déjà vu all over again”.
3. Widening of the Labour Relations Board’s discretion to order automatic remedial certification without a vote.
4. Changes to the successorship provisions in the Code to prevent employers from avoiding collective agreements where there has been a re-tendering of contracts in the following sectors: (a) building cleaning, security, and bus transportation; and (b) the health sector including food, housekeeping, security, care aides and long-term or seniors care. In order to prevent employers from cancelling contracts prior to the change in legislation, the Panel recommends that these changes be made retroactive.
5. An extension of the freeze provisions after certification to 12 months from the current 4 months.
6. A change to the definition of picketing to remove consumer leafleting.
7. An Increase in fines for a refusal to obey a Board order from $1,000 to $5,000 for individuals, and from $50,000 to $100,000 for organizations.
8. An increase in funding to the Board.

The Panel noted many areas where changes should be made, but only after further review. Consequently, the Report is incomplete in many respects. The areas where the Panel identified a need for further review and change include: (a) multi-employer certification; and (b) sectoral bargaining. While these areas are separate and distinct, changes to either, or both, could have a significant, negative, impact on employers.The Panel also recommended that an industrial inquiry commission be appointed to review the forest industry. Kicking these and other cans down the road will create further uncertainty and concern for employers in these sectors.One key item that was left unchanged is section 68 of the Code, which significantly restricts the otherwise legitimate use of replacement workers during a strike or lockout. The Panel concluded that the provisions in the Code relating to picketing and replacement workers comprised a ”package” when introduced and, consequently, no change in either provision was needed (except for the definition of the term “picketing” described in paragraph 6 above).Feedback on the Report must be provided by November 30th, 2018.Changes will be made to the Code in the 2019 Spring session. I suspect that many of the 29 recommendations will be implemented, as they are, for the most part, unanimous recommendations. The wild card may still be whether the Minister ignores the majority’s recommendation to retain the secret ballot vote. Employers should plan now to be prepared for any changes that might be made in 2019. I would be glad to work with you to assess what steps you might want to take in advance of any legislative changes.We will keep you posted.Labour Code Panel ReportPress Release Minister of Labour

Written by Michael J Weiler A number of years ago, when I was trying to learn to ski, I recall one exasperated teacher continuing to say, “Mike, you have to look 20 feet ahead of you – not right at your feet”. The same principle applies to planning your business. The successful entrepreneurs are those who can anticipate change and take action now to take advantage of changes in the future.Those who have read Thomas Friedman’s outstanding book, “Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations”, will appreciate the “tectonic movements that are reshaping the world today”.The BC Business Council has just released a paper prepared by David Williams, Vice President of Policy, that takes a close look at the potential impact of automation on the BC Labour Market. With the permission of the BCBC, we are pleased to offer this informative paper along with a useful summary to our readers. We hope it will allow you to look 20 feet ahead of your skis.Set out below is a quick summary highlighting the points addressed in the Paper[1]:

• The changing role of labour and the ever-expanding range of tasks in producing goods and services in the BC labour market.
• The significant percentage of BC jobs with a high potential to be automated and the fact that BC has, compared to the rest of Canada, a slightly greater share of highly-automatable occupations and (a) how that will affect costs of adoption; and (b) the potential effect of automation on low-income jobs.
• The fact that more than half of B.C. jobs are in sectors that are highly automatable, on average.
• The fact that: about 90% of B.C. jobs are in occupations where at least 10% of tasks can be automated by a current technology; about 35% of jobs are in occupations where at least 50% of tasks are automatable, and about 11% of jobs are in occupations where 80% or more of the tasks are automatable.
• While no one can predict the pace of future automation, the paper offers a technically-focused risk assessment only – the actual pace and extent of automation will depend on non-technical factors as well, including economic, social and regulatory developments.
• It may be that productivity gains and the creation of new roles for labour could more than offset automation’s effects on overall labour demand.

Is your business ready to meet the challenges of future automation?This content is for your general information and should not be taken as legal advice. If you have a specific problem, please contact KSW Law to discuss your situation with one of our lawyers. [1] The above summary is a shorter version of the summary provided by Mr. Williams in the Paper.

Written by Michael J WeilerIn my December 2015 blog post, I commented on the increasing number of decisions in Ontario that awarded damages based upon notice periods beyond the normal “cap” of 24 months: https://www.ksw.bc.ca/2015/12/09/will-the-rough-upper-limit-of-24-months-notice-be-increased-in-bc/At that time, I opined that the 24-month cap will remain the law in BC. In this article, I note that Ontario courts continue to push the envelope in extending notice periods beyond 24 months. I have been documenting this trend since that 2015 article – including in this article posted on my blog: https://www.ksw.bc.ca/2016/03/30/26-months-notice-for-husband-and-wife-contractors/ Now, an Ontario Court, in the case of Dawe v Equitable Life, has held that 36 months’ notice would have been reasonable.Michael Dawe was employed by The Equitable Life Insurance Company of Canada as a senior VP. He was 62 years old at the time of his termination and had been with the company for 37 years. He earned a $249,000 base salary plus a bonus of $379,000. He was terminated without cause because of a minor dispute with management over the use of sports tickets. He had little chance of replacing his employment. He sued for wrongful dismissal and claimed damages based on a 30 months’ notice period. The company argued that the normal cap of 24 months should apply.The Court noted the general presumption of 24 months as the cap but found, at Para 31, that “Presumptive standards no longer apply” given that, among other things, the normal retirement age of 65 no longer applies in many cases.The Judge found, at Para 35:Mr. Dawe had commenced the process of retirement planning, not uncommon at his age and logical given the nature and focus of the life insurance industry. Mr. Dawe had made no decision as to when retirement would occur. He says he was committed to working at Equitable Life until at least age 65. Retirement, if voluntary, may have occurred sooner or later. On the evidence, I conclude it is more likely Mr. Dawe would have worked at Equitable Life until age 65. I would add, it was more likely he would have worked there to a later age than an earlier one.The Court considered the “Bardal factors”[1] but ultimately ruled in favour of Mr. Dawe. See Paras 36 and 37 where the Judge finds:Counsel referred to a number of cases as examples of a reasonable notice period. Such were helpful in my review. Mr. Dawe is at the extreme high end of each of the Bardal factors. He should have been allowed to retire on his own terms. With no comparable employment opportunities, in particular, I would have felt this case warranted a minimum 36 month notice period.Mr. Dawe’s position of a 30 month notice period is more than reasonable. I conclude he was entitled to that in this case.The result was that Mr. Dawe was awarded damages based on 30 months’ notice as he had claimed. Had he asked for more, he would have been awarded damages of at least 36 months!It should be noted that this decision was based on a summary trial that dealt only with the notice period and the entitlement to bonuses. Mr. Dawe was still entitled to pursue his claims for punitive and moral damages that would require a full trial.WHAT TO DO?While I think it remains unlikely that BC courts will regularly award damages beyond the 24-month cap, employers are well-advised to protect themselves from such extraordinary awards. Readers of this blog will know what I suggest—obtain a valid, enforceable, written employment agreement limiting the employee’s rights on termination. In BC Mr. Dawe could have been contractually limited to 8 weeks damages.The content in the Michael Weiler Employment + Labour newsletters and blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact Michael Weiler to discuss your situation.[1]Bardal v The Globe and Mail – these factors have been discussed often in my blog articles. For example, see my 2015 article linked in the first paragraph of this article.

Given the shortage of skilled workers and senior management, it is not unusual to see employers trying to protect their interests by having such a skilled or senior employee sign a contract that restricts the employee from competing, or soliciting customers, after the employee leaves his employment.Such restrictive covenants are frowned upon by the courts.  However, such contracts can be very effective if properly drafted.  In January 2017, I provided a summary of how the law operates and the value of proper drafting by the employer (see: How to Protect Your Business Interests with Non-Competition and Non-Solicitation Clauses).  The case discussed in this article only underscores my advice that careful drafting of such a provision is essential for the employer.In a recent decision of the BC Supreme Court, where Telus Communications Inc. applied for an interlocutory injunction against a former employee,  (see: Telus v Golberg), Telus discovered, the hard way, that the non-competition clause they included in a senior executive’s employment agreement, was unenforceable.  This finding by the Court was not affected by either Telus’ assertion that it paid $1 million to achieve such restriction (the court did not entirely agree with that assertion) or the fact that the employee had breached his fiduciary duties to Telus prior to terminating his employment.Daniel Golberg was employed as a senior VP for Telus.  His activities and responsibilities were limited to the telecommunications industry.  He resigned from Telus and was hired by Rogers Media.  Although Rogers is a competitor of Telus, it assured Telus that Mr. Golberg would not be involved in any way with Rogers’ telecommunications division and would be subject to a confidentiality wall with respect to any matters that involved competition with Telus.  Notwithstanding these assurances, Telus sought an injunction preventing Mr. Golberg from accepting employment with Rogers Media.The restrictive covenant read as follows (see para 2):Accordingly, the vice‑president agrees as follows:  A) during the term of the vice‑president’s employment with Telus or TeleMobile (determination) and for the trial period immediately following the date that the employment of the vice‑president ceases (determination date) regardless of who initiated the termination and whether the termination was with or without cause, the vice‑president will not, without the prior written consent of Telus, directly or indirectly either individually or in partnership or jointly or in conjunction with or on behalf of any person or persons, firm, association, syndicate, corporation or another enterprise, as principal, agent, employee, director, officer, shareholder or contractor or in any other manner whatsoever:1) carry on or be engaged in executive, management, supervisory or strategic work or participate in, make a decision in respect of, direct, assist with, contribute to, advise on, provide consulting or other services in respect of any strategic management, supervisory or executive matters for any person or persons, firm, association, syndicate, corporation or other business enterprise engaged in or concerned with or interested in any business which is competitive with the business of Telus within the provinces of British Columbia, Alberta, Ontario and Quebec.Mr. Golberg did not disclose to Telus that he was having serious discussions with Rogers Media when he attended a series of meetings to develop Telus’ short-term and long-term strategies, nor during the period when Telus and Mr. Golberg were negotiating a severance package that included an enhanced non-compete clause at the time that he knew he was going to join Rogers Media.As we reviewed in the January 2017 blog article referred to above, a court starts from the premise that a restrictive covenant is prima facie unenforceable because it is an unlawful restraint of trade.  One of the primary reasons for that position is that there is an imbalance of bargaining power between an employer and an employee, which justifies a more rigorous scrutiny of restrictive covenants in employment agreements than in a commercial contract for the purchase and sale of a business. The employer must show a strong “prima facie” case that the restrictive covenant upon which it is relying, will be found enforceable at the hearing for a permanent injunction.  To do so, the employer must demonstrate that: (a) it has a legitimate interest to protect; (b) the clause, as drafted, is reasonable, having regard to the temporal, geographic and scope provisions of the clause; and (c) the clause is, overall, fair.In the Telus decision, Mr. Golberg conceded that the clause was not unreasonable with respect to “its length or territorial reach” (the length of the period of non-competition ran for one year following the termination of employment and covered the Provinces of BC, Alberta, Ontario and Quebec).  However, Mr. Golberg argued, at para 31, that the clause was “overly broad because it prohibits him from taking a managerial role in any company that is in competition with Telus or any of its affiliates, including affiliates which come into existence after the date of execution of the covenant.”Telus raised a unique argument that the requirement that it demonstrate a strong prima facie case was to a less-demanding standard because Mr. Golberg was a highly educated individual with extensive business experience when the parties negotiated his employment contract, including the bonuses he received which were in part consideration for him entering into the restrictive covenant. In doing so, Telus relied upon a statement in Quick Pass v Zhao, a decision of the BC Supreme Court.  In that decision, the Court noted that it will more closely scrutinize restrictive covenants in employment contracts than in other contracts such as agreements for the purchase and sale of a business.  It stated, at para 34: “However, the appropriate degree of scrutiny must reflect the reality [of] both of the parties’ relative bargaining power and of the bargain struck”.  Given the size of the employer, and the expertise of the employee, the Court, in Quick Pass, found, at para 35: “The inequality of bargaining power between the parties was less than that usually presumed in an employment relationship”.  Given that, and the fact that the employee was paid $15 per hour expressly in consideration of not competing, the Court concluded that “[t]he restrictive covenants, in this case, are not subject to a high level of scrutiny.”The Court rejected Telus’ argument that the standard was lessened or that less scrutiny was required, stating, at para 26:In this case, I find that there clearly is an imbalance of resources between Telus and Mr. Golberg. The bonus to Mr. Golberg was agreed to [at] the outset of his employment and not at the time he left his employment. The bonus was based primarily on the longevity of his service rather than the granting of the restrictive covenant. This further distinguishes this case from Quick Pass.Further, the Court in Quick Pass found that the plaintiff had, in fact, established a strong prima facie case that the restrictive covenant at issue was enforceable, thus distinguishing it from the Telus covenant.The Court also noted that the Telus restrictive covenant was far too broad in restricting Mr. Golberg’s post-employment activities.  Telus argued it needed to protect its telecommunications business, yet the clause was not limited to that business.  The Court, therefore, concluded, at para 41:However, it is the blanket prohibition against taking employment with any competitor of the employer or any of its subsidiaries regardless of whether the new position had any relationship to the duties and knowledge that the employee had while employed by the employer that makes the covenant overly broad in my view. This is particularly so given that the employer is a very large enterprise that has numerous subsidiaries or affiliates in multiple fields of endeavour. I, therefore, find that the covenant is overly broad in limiting Mr. Golberg’s ability to pursue his skills in management and is therefore prima facie unenforceable.Breach of Fiduciary DutyTelus argued, at para 47, “that Mr. Golberg “breached his fiduciary duty to Telus and that the only appropriate remedy for that breach is to enjoin him from working at any Rogers Media entity.”The Court found, at para 49, that Mr. Golberg was, indeed, a fiduciary and that he had breached his fiduciary duties to Telus:I am also of the view that Mr. Golberg breached his fiduciary duty to Telus by actively pursuing a termination payment while negotiating the terms of his new employment at Rogers Media. When Mr. Golberg was seeking a termination package from Telus, he owed a fiduciary duty to provide Telus with frank and full disclosure about his employment situation.However, that breach did not enhance the right of Telus to obtain an interlocutory injunction. The Court held, at paras 52 and 53,Notwithstanding these findings, however, I do not regard his conduct as disqualifying him from being able to pursue his career. In the absence of a binding non‑competition agreement, a former fiduciary is entitled to compete with his former employer as long as he does so fairly. Acting fairly, of course, encompasses maintaining his duty of confidentiality with respect to the affairs of his former employer.The more serious breaches of fiduciary duty on Mr. Golberg’s part involved his failure to make full and frank disclosure about his employment plans while he was attempting to obtain a severance package from Telus. These breaches do not constitute unfair competition on his part. I, therefore, find that notwithstanding his breach of fiduciary duty, Mr. Golberg is entitled to compete with Telus in the absence of an enforceable non‑competition covenant.TakeawaysThe Court noted, at para 37:In my view, the restrictive covenant is the product of overzealous drafting by Telus’s solicitors. The entire focus of the covenant appears to be directed to making the covenant as broad as possible without giving adequate consideration to the important interests that Telus seeks to protect in the covenant or the interests of Mr. Golberg as an employee.When my clients ask me to draft a restrictive covenant, I encourage them to approach the task from the viewpoint of providing the least invasive restrictions necessary to achieve their goal of protecting their business, having regard to the courts’ approach that such clauses are prima facie unenforceable.   If instead, a non-solicitation clause will achieve that goal, it may be preferable to include a non-solicitation clause rather than a non-competition restriction, as the courts look at the former more favourably than the latter.  This decision must be made after considering all factors, including that it may be much harder to obtain an injunction to enforce a non-solicitation clause.  Employers’ reach should not exceed their grasp.If an employer can demonstrate the negotiation of the restrictions between the employee and the employer, that fact may be evidence that the parties did agree as to the reasonableness of the restrictions.  Paying a specific sum solely as consideration for the employee agreeing to the restrictive covenant, should be included in the employment agreement with great clarity, especially with very senior employees[1].  Following this approach will often produce a much better result than Telus achieved.  Even if the clause may be attacked in court, the closer the clause approaches reasonableness, the less likely an employee (or putative employer) will take the chance of breaching the agreement and incurring significant legal fees and potentially a large damage award. In certain circumstances, it may even be appropriate to require the employee to obtain independent legal advice.The content in the Michael Weiler Employment + Labour newsletters and blog is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Michael Weiler to discuss your situation.[1] Note that in the Telus case, the Court held that the consideration, despite the wording of the contract, was primarily to ensure a lengthy employment, not to support the restrictive covenant.

Written by Michael J WeilerEach year we report on how the courts have defined “reasonable notice” in the previous year. For those employers who have binding written employment agreements that define the notice period on termination – congratulations! Those agreements should be determinative, and therefore these decisions are not relevant. But for the vast majority of employers who do not have such written agreements in place with their employees, the following summary will be very much relevant and should be of interest.Courts will look at four key elements to determine how much notice is reasonable: age, length of service, position and the availability of similar employment having regard to the employee’s skills and qualifications. The court will often look at economic circumstances but will not give that factor undue weight. The highest period of notice, subject to a few exceptions, is 24 months. As noted below Ontario courts seem to be ready to break through that ceiling. Please bear in mind the fact that each case will be decided on its own facts and there is no litmus test. Furthermore, the amount of notice will not always equal the amount of damages as the employee must mitigate her damages and must also prove her losses (e.g. lost benefits or bonuses).The following notable cases from 2018 will give you some idea of the courts’ present thinking on the matter. There can be very important factors in each case especially dealing with senior executives whose compensation can often exceed $20,000 per month. If you want to become a lawyer for a day, cover up the right-hand column and see how you do in assessing the notice periods:Case NameEmployee PositionIncomeAgePeriod of EmploymentNotice PeriodPakozdi v B & Bbidder/estimator$125,0005513 months5 monthsFirth v IBMnot senior management but called him a “fiduciary”!$112,0003819 yrs19 monthsDussault/Pugliese v Imperial OilD–Manager Real Estate-not supervise but NB position$190,006339 yrs26 months“Dussault” cont.P–Territory Mgr–not supervise but NB position$156,0005736 yrs26 monthsKerr v ArpacManager (no employees)$70,0007022 yrs20 monthsPasche v MDE EnterprizesSheet metal estimator$66,0006718 yrs13 monthsTymko v 4-D EnterprizesSwitchman / operator523 yrs2 monthsGreenlees v Starline Windowssalesman$100,000436 months6 monthsKok v Adera Natural Stone Ltd.s’or=senior management$131,0005427 years22 monthsCorey v Kruger Productsmaintenance s’or–first level of management$100,000582 1/2 yrs8 monthsRuston v Keddco MfgPresident$278,000 + bonus5411 years19 monthsChapple v Big Bay Landing LtdLodge Manager$85,0006126 months9 monthsDawe v The Equitable Life Insurance CoSenior Vice President$249,000 salary + $379,000 bonus6237 years30 monthsMichael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca . Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law. Michael can be contacted at [email protected] . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at [email protected] or call her at 604 336 7427.

1. Disclaimer
2. The content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice. If you have a specific problem, please contact Michael Weiler to discuss your situation.

Written by Michael J WeilerIn Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, the Supreme Court of Canada red-flagged the struggle and conflict between safety and privacy rights in a case dealing with the right of an employer to implement random testing for alcohol and drugs.  The SCC majority struck down Irving Pulp’s policy.  The decision of the majority opened with these comments:Abella J. — Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly the case when the workplace is a dangerous one.With the legalization of marijuana, issues of detection and discipline within the workplace will create even more tension between privacy issues and the right to operate your business in a safe and productive manner.The SCC has stepped in again to comment on privacy issues in the case of R. v. Jarvis.  Although the case is a criminal law case, it raises issues that might well apply to your workplace.An excellent article by Kelly Nicholson, a partner at Field Law in Alberta, summarizes the Jarvis decision.  I have had a working relationship with Field Law for many years on matters involving Alberta employment and labour law and have found their newsletters to be very insightful.  In many areas, the cases they review have application here in BC.  I am introducing you to this article with thanks to Field Law and the permission of the author and Field Law.As Kelly Nicholson introduces his article, I repeat here to suggest why you may want to read the article yourself:“Though it emerges in a criminal law context, the new decision of the Supreme Court of Canada in R v Jarvis, 2019 SCC 10 is likely to have an impact on future cases that consider the scope of an individual’s privacy interest, whether in the criminal or civil sphere. Articulating a sophisticated understanding of how privacy may remain a reasonable expectation even in a public or semi-public space, the case will no doubt be of interest to employers and other parties whose operations bring into question the line between that information which is personal – to a worker or customer, for example – and that which, in the circumstances, may properly be examined or observed.”READ MORE at FIELDLAW.com[1]The content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Michael Weiler to discuss your situation. [1] Information made available in the Field Law article linked to this blog post is for informational purposes only. It is NOT LEGAL ADVICE and should not be perceived as legal advice. You must not rely upon this information in making any decision or taking (or choosing not to take) any action. This information does not replace professional legal advice – and must not be used to replace or delay seeking professional legal advice. Any views expressed in the Field Law article linked to this blog post are those of the author and not the law firm of Field LLP. The act of accessing, printing or reading the article linked to this blog post, or publication or downloading any of the content does not create a solicitor-client relationship, and any unsolicited information or communications sent to the authors or Field LLP (by any means) is not protected by solicitor-client privilege.“Field Law”, the logo and “Because Clarity Matters” are registered trademarks of Field LLP. “Field Law” is a registered trade name of Field LLP.”