In May 2024, the BC Human Rights Tribunal decided that Telus Employer Solutions (TES) was reasonably certain to prove that any discriminatory conduct that might be proven at a hearing was justified.  In McNeil v. Telus Employer Solutions (TES) (No. 2), 2024 BCHRT 166 (CanLII), the Tribunal considered both the Complainant’s and the Respondent’s respective points of view when deciding if there was no reasonable prospect that the complaint would succeed.  Its consideration was guided by analysis from the BC Supreme Court, following the Complainant’s successful judicial review of an earlier decision to dismiss the complaint.
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The Facts

Events at issue in this case date to 2018 when Ms. Dawn McNeil was working at TES as an employee with a series of temporary employment contracts and had asked to take advantage TES’s work from home policy called “Work Styles Program” due to environmental sensitivities/allergies. The default at TES was a “work from office standard” and eligibility to work from home involved an assessment of individual circumstances, job performance and function, mobile readiness, and space availability.  In denying Ms. McNeil’s request to work from home, TES considered the eligibility requirements before declining to allow her to work from home.  In considering whether TES could defend that decision e.g. whether it had a bone fide occupational requirement for Ms. McNeil to be in the office, the Tribunal had to consider TES’ evidence about:

• The work from office standard, and how it was rationally connected to the performance of the job.
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• The adoption of the work from office standard, for instance was it adopted in good faith and in the belief that it was necessary to fulfill a legitimate work-related purpose.
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• Whether the work from office standard was reasonably necessary to accomplish the legitimate work-related purpose, in the sense that the employer could not accommodate people sharing Ms. McNeil’s protected characteristics.
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When the evidence was considered, the Tribunal concluded that TES was reasonably certain to prove at a hearing that it had a bone fide occupational requirement for not allowing work from home on the facts.
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Employer Takeaways

1. Employers have a duty to accommodate employees with a disability (visible or not) so consider what policies you are seeking to apply when accommodating employees with a disability. If those policies aren’t rationally connected to work performance, have not been updated recently, and/or no longer accomplish a work-related purpose, then don’t use them to justify rejecting an accommodation request.
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2. If your company is faced with a complaint that you did not properly accommodate an employee, review the policies you applied in that case, and articulate how they are a bone fide occupational requirement, so that at the earliest opportunity (usually an application to dismiss) you can articulate why the decision not to provide the requested accommodation was justified.
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3. When an employee asks for accommodations in the workplace, consider reaching out to a lawyer early since legal advice early in the process will assist in minimizing the risk of a legal proceeding later on.

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The BC Supreme Court recently determined that an email sent to a prospective employee detailing partial employment terms prior to a formal agreement constituted a full and binding employment contract (Adams v Thinkific Labs Inc., 2024 BCSC 1129).

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Facts

The employer sent a prospective employee a 60-page detailed offer of employment via email (the “Email Agreement”). The Email Agreement contained information about the employee’s compensation, bonuses, benefits and leave entitlements. It did not, however, contain termination or non-competition terms. The Email Agreement indicated that the employer would provide the official employment contract upon receipt of the employee’s full legal name and desired start date.
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Upon the employee’s acceptance of the Email Agreement, the employer sent a formal written employment contract (the “Letter Agreement”). The Letter Agreement included termination and non-competition clauses among other burdens and limitations on the employee, none of which had been included Email Agreement. It did not contain the information about employee entitlements and benefits outlined in the Email Agreement. The employee signed the Letter Agreement and commenced work on September 20, 2021.
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On May 23, 2023, the employer terminated the employee, relying on the termination clause in the Letter Agreement.

Issue

Was the Letter Agreement an enforceable contract? Or did the Email Agreement constitute a complete and binding employment contract, such that the employer could not rely on the termination clause and notice entitlements in the Letter Agreement?

Decision

The court held that the Email Agreement constituted a complete and binding employment contract between the employee and employer. The Letter Agreement was unenforceable, as no new consideration was presented to the employee along with its terms. Thus, the employer could not rely on the termination provision in the Letter Agreement, and the employee was entitled to five months pay in lieu of notice under the common law.

Reasoning

The Email Agreement contained a full offer of employment with detailed and lengthy terms. The employee accepted the offer when she provided her name and start date. The subsequent Letter Agreement imposed new terms to the existing agreement with no new benefits or entitlements to the employee. To enforce the new terms in the Letter Agreement, the employer would have had to provide additional consideration or benefit to the employee. The promise of continued employment in exchange of acceptance of new terms does not constitute consideration. The court noted that adequate consideration is especially important where new terms impose onerous burdens and detriments on the employee.

Takeaways for Employers

Provide a single, formal and comprehensive offer of employment with consideration

This decision serves as a reminder to employers to provide prospective employees with a single, formal and comprehensive offer of employment that incorporates all relevant terms and conditions. Employers should avoid sending initial offers with partial terms prior to the formal agreement, as these communications could be enforced as a complete and binding contract, rendering the formal agreement unenforceable. Employers should be especially careful not to introduce new terms or obligations to employees without providing new benefits or consideration.
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Failure to provide consideration for new employment terms could result in high awards for short service employees

Employers should be aware that, should their formal agreement be rendered unenforceable, they may lose important protections related to termination. In this case, the employee worked for the employer for approximately one year and eight months. Because there was no termination clause in the Email Agreement, the BC Supreme Court awarded her five months pay in lieu of reasonable notice under the common law. After deducting mitigation earnings and the amount already received, the total award was $31,647.44. If, the employer had successfully relied on the Letter Agreement’s termination clause, the employee’s compensation would have been $5769.23 for three weeks pay in lieu of notice. If, for example, the employer had successfully relied on a termination clause limiting their liability to the requirements in the BC Employment Standards Act, RSBC 1996, c 113, the employee’s compensation would have been two weeks pay in lieu of notice.
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The BC Supreme Court will not award costs to a party who’s claim reasonably should have been brought in Small Claim Court.
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The final award was within the monetary jurisdiction of the Small Claims Court. The BC Supreme Court held that the employee was not entitled to costs of her action, except for her reasonable disbursements. This was because there was no sufficient reason to bring the claim in in the Supreme Court, as even the highest potential award to the employee was still less than $5,000 over the monetary jurisdiction of the Small Claims Court.

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Written By: Roan Wallace

Dibble v. Creative Music Therapy Solutions Inc., 2024 BCSC 1066 (“Dibble”) is a relatively lengthy case dealing with a whole assortment of employment-related issues. Of note, Justice Loo addressed the issues of:
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1. Whether the individual in this case was an employee or contractor;
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2. Whether the individual in this case was entitled to reasonable notice if they were a contractor;
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3. Whether the company had just cause to terminate Ms. Dibble;
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4. Whether a restrictive covenant (in this case, a non-solicit and non-compete) was enforceable; and
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5. The duty to mitigate (i.e. an employee’s obligation to take reasonable steps to find replacement employment) and avoided loss (i.e. the idea that replacement income during the notice period should be deducted from the award).
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Contractor vs. Employee

The first two issues may come as a surprise to some employers as an employer may wonder:
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1. Why someone who’s agreed to be a contractor could be an employee; and
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2. Why a contractor would be owed notice for termination.
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The answer to this lies mostly in the fact that although the courts will generally try to give effect to the deal reached between two parties, employment or employment-like relationships are treated somewhat differently due to the usual imbalance of power.
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As noted in Dibble, there is a history of cases where the courts have recognized that between the extremes of employees (who are entitled to reasonable notice) and independent contractors (who are not), there is an intermediate category of “dependent contractors” who are entitled to notice of their termination even though they are not employees. As noted by Justice Loo at paragraph 44 of Dibble:
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As a general proposition, a person on an employer’s payroll and for whom the employer makes conventional statutory deductions from his pay will be considered to be an employee. If his contract does not provide otherwise, that person is entitled to reasonable notice of termination of his employment. An independent contractor, on the other hand, is not an employee. Between those two states lies a construct of the common law: the dependent contractor. The dependent contractor is not on payroll, but in most other ways operates and is treated as an employee. A dependent contractor is entitled to reasonable notice of termination of his contract.
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Whether someone will be considered an employee, independent contractor or dependent contractor will depend on numerous factors including the level of exclusivity, degree of control over their work, the duration/permanence of the relationship, the level of integration, and the level of economic dependence. If in doubt, it is always best to consult legal counsel before terminating a contractor’s services especially if the contractor has been providing services to the company for some time.
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In Dibble, the plaintiff was able to decline work from the company (one of the indicators of independence) but depended upon the company for over 70% of her annual income.
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As the court found that she was a dependent contractor, it naturally flowed that absent a contract containing an enforceable termination clause Ms. Dibble was entitled to reasonable notice of her termination unless there was just cause.

Just Cause

The employer in this case argued that it had just cause to terminate Ms. Dibble for two reasons:
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1. she performed music at one of the company’s client locations; and
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2. she acted “unprofessionally” by refusing to follow a client’s instruction to cover up one of her tattoos (due to it being too hot) and later, when confronted by her supervisor regarding the interaction, she used curse words.

As noted in the decision at paragraph 79, just cause is seen as the “capital punishment” for workplace offences. It is therefore very rare that single incidents will constitute just cause (although it is possible). This is because just cause will only be a successful defence where the employer can show that the conduct of the employee was “fatal” to the employment relationship from the objective view of a reasonable employer in the circumstances.
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In this case, Justice Loo found that just cause was not met due to the fact that:

1. the contractual term prevented the plaintiff from accepting musical therapy work at client locations, but not music entertainment (which is what she was performing); and
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2. the “unprofessional” conduct noted by the defendant did not rise to the level of just cause, even if the defendant’s more extreme version of the events was believed. Rather, a lesser form of discipline such as a reprimand would have been appropriate.  
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Reasonable Notice and Mitigation

As a dependent contractor, the plaintiff was entitled to “reasonable notice” or “pay in lieu” of her termination. “Reasonable notice”, when there isn’t a contractual term addressing this, is calculated based on the individual’s length of service, age, role and other factors.
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In this case, the plaintiff had provided services to the company for 12 years and was 37 years old. She was therefore awarded a notice period of 12 months.
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Although she was awarded a notice period of 12 months, and the wages that she would have earned during that period were calculated as $26,346, the court reduced this award to account for her “mitigation” income.
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Mitigation is the principle that someone who suffers a loss must act in a reasonable manner to minimize that loss. In the case of employees or dependent contractors, that is in the form of finding replacement income. In this case, Ms. Dibble was able to earn replacement income through her business during the notice period and was therefore awarded only $12,090 in damages. Ms. Dibble also sought punitive and aggravated damages which were not awarded due to the fact that the company’s conduct did not rise to the required level of “bad faith” conduct.
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Restrictive Covenants

The employer in Dibble brought a counterclaim against Ms. Dibble for allegedly breaching a term of their contract that said:
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11. The contractor agrees that on the termination of this contract, the contractor will not solicit or accept work with the facility outside of Creative Music Therapy Solutions for a period of 3 years (time period) from the date of termination of this contract.
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Our courts have, in previous cases, established that terms that restrict the ability of people to find work will be presumptively unenforceable and interpreted narrowly. In other words, for this type of clause to be enforceable it needs to be reasonable as between the parties and with regard to the public interest.
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Whether or not a restrictive covenant will be “reasonable” will depend on the specific circumstances of each case and restrictive covenants such as non-competes and non-solicits are another area where seeking legal advice is recommended. This is because in some cases, a three-year timeframe for a non-compete may be enforceable (for example, in some commercial transactions) but in others (like most employment scenarios) it will not be.
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In this case, the clause failed as a result of ambiguity over terms such as “the facility” and “work”, and the geographic scope and duration were both excessive.

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In early July 2024, the Toronto-Dominion Bank was ordered to produce an unredacted workplace investigation report, and the related complaints, in a wrongful dismissal claim.
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At issue in Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC) was whether participants interviewed as part of a workplace investigation should be afforded confidentiality when the workplace investigation became relevant in a legal proceeding.
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In this decision, the Toronto-Dominion Bank argued they had cause to fire Mr. Jarvis because of the findings of a workplace investigation, and the public interest and privacy required the names of the participants in the workplace investigation to remain confidential. The judge didn’t agree and held that:

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• Confidential information from an employee connected to their employment is not protected from disclosure in a court proceeding because the public interest in the proper administration of justice outweighs the public interest in upholding claims of confidentiality and privilege.
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• Privacy law is not a bar to disclosure in a court proceeding because such disclosure is permitted by the applicable law.

In light of this decision, and a May 2024 decision in a BC medical negligence claim, Homan v Nemanishen, 2024 BCSC 735 (CanLII), that confirms privilege is waived when documents are referenced in pleadings, here are some key takeaways for employers and workplace investigators:
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1. Don’t promise confidentiality if the facts of the termination are likely to end in front of a judge or arbitrator
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   While it doesn’t happen often, employers should be prepared to have their workplace investigation reports seen by a judge or arbitrator if they choose to rely on the report when terminating an employee.  Since the Court in Jarvis says that workplace investigation reports aren’t to be treated differently from the employment contract, or other relevant employment relationship documents, it is important to inform workplace investigation participants that if the subject matter of the investigation leads to legal proceeding there is the possibility that their information will not remain confidential.  
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   Similarly, the court in Homan confirms that relying on solicitor client privilege because a lawyer has been engaged as the workplace investigator will be difficult since choosing to rely on the workplace investigation report in legal proceedings will be considered a waiver of solicitor client privilege.  
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2. Privacy law is important however disclosure in court proceedings is more important
   
   In Jarvis, the employer sought to protect the names of the participants through arguments about the application of the Personal Information Protection and Electronic Documents Act, however the court was unpersuaded since the act allows disclosure to the court of personal information without the knowledge or consent of the employe in order to comply with rules of court relating to the production of records. While employers should always be aware of the information they are collecting about their employees and under what circumstances privacy law allows them to share it, it is important to remember that employers aren’t allowed to use privacy law as a shield when there are legal proceedings.
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3. Employers have a choice about how they terminate an employee
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   In both Jarvis and Homan, a choice was made to rely on documents that contained confidential and privileged information to justify actions taken.  That choice meant the contents of the documents needed to be produced to the court so the could could determine if the actions were justified. An employer can avoid this choice by weighing the desire to terminate for cause with the costs of a wrongful dismissal litigation, including the the costs of the workplace investigation report being made public.
   
   Workplace investigations seldom contain “gotcha” findings of fact so employers should consider other options like progressive discipline when conduct breaches harassment and discrimination policies.
   
   If you are an employer who needs a workplace investigation or is considering terminating an employee because of the findings of a workplace investigation consider contacting a trust legal advisor, like the lawyers at KSW, to help evaluate the legal risks of the options available to you.

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The City of Surrey is slashing many building and development application fees through a new rebate program called the Rapid Transit Development Incentive Program. The program aims to incentivize real estate developers to accelerate the construction of new condominium near rapid transit stations.

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For any fees paid after December 4, 2023, the City of Surrey’s new program will cut application fees by 50% for engineering (servicing agreement processing, administration, ESC application), building (building permit fees), and planning (rezoning, development permit, development variance permit).

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The fee reduction would only apply to projects within 1.5 kilometres of an existing SkyTrain station (Scott Road, Gateway, Surrey Central, or King George) or an existing RapidBus route (R1 King George Boulevard or R6 Scott Road).

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As a result of the City of Surrey’s priority of building high-density multi-family buildings, eligible buildings must be at least 4 storeys stall, have a floor space ratio (FSR) that is at least 0.5 times the size of the lot, and have a minimum total residential area of 2,000 square metres (21,528 square feet).

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The City is aiming to incentivize the development of about 3,000 homes through the Rapid Transit Development Incentive Program.

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If you are a real estate investor with any questions related to the new laws or how to navigate these pending changes, reach out to Aman Bindra at [email protected] or 604-591-7321 today.

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The Workplace Investigation team at KSW offer third party neutral investigation services, however a workplace investigation may not be what your company needs. Sometimes an informal process may be enough, or perhaps a formal internal investigation.

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Here are a few factors to consider when assessing what process might be best for your company:

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1. The power dynamic between the Complainant and Respondent

If the Complainant reports to the Respondent, or generally has less power in the company because of role, length of service, or age, then do not consider an informal process.  The power imbalance cannot be managed successfully in such cases, and a workplace investigator should be used that can assess whether or not there has been an abuse of authority.  

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2. There will be an on-going working relationship between co-workers

Co-workers disagree and when those disagreements involve one or two racist or sexist comments or a single incident of bullying and harassment then an informal process may be the right process.  If there is only one Complainant and one Respondent, they were previously on good terms, and there is reflection and remorse on the part of the Respondent then an informal process where the Complainant can explain the impacts and have them acknowledged by the Respondent.

If there has been a problematic conduct between the co-workers for some time, and there are multiple allegations, then a formal investigation is recommended.

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3. An anonymous complaint has been received

While difficult to know where to start, an anonymous complaint isn’t something that should be ignored, however without the identity of a Complainant it doesn’t lend itself to an informal process. Rather, an investigation should be undertaken with witnesses being interviewed first to understand the substance of the complaint and what should be reviewed with the Respondent.

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If your company is looking for advice about Respect in the Workplace policies in British Columbia, including investigation procedures and informal and formal processes, please reach out to the KSW Workplace Investigations Team.

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Being a good employer in Canada means doing more than paying minimum wage for hours worked. In the case of misconduct in the workplace, being a good employer means understanding occupational health and safety, employment standards, and human rights legislation and when necessary, hiring someone outside to investigate misconduct.

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While hiring an external investigator can feel like exposing your company to a foe, below are some reasons to consider an external investigator a friend.

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1. The person being investigated is also the person responsible for ensuring complaints are investigated

A good Respect in the Workplace policy will be signed off by a senior leadership team member responsible for workplace culture. If the misconduct complaint is about that team member, it is important to choose someone outside your company to investigate the misconduct complaint to demonstrate that the policy is applicable to all employees, and not even senior leaders are above its application. Choosing an external investigator also ensures that alliances, friendships and power dynamics amongst the senior leadership team aren’t a factor since the external investigator will not have a vested interested in any particular outcome, like the other members of senior leadership team.  

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2. The misconduct complained about may be of interest to the public and/or shareholders

Many companies have built their brand around values focused on social purpose. When misconduct occurs in such companies, the impact on the brand will be great if the misconduct touches on the company’s core values. Having an external investigator assess the facts will demonstrate that the need for a workplace investigation can be reconciled with the company’s core values since an external investigator brings necessary objectivity.

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3. Company restructuring has occurred, is occurring or is about to occur

Change is inevitable, however the stress associated with it can have unintended consequences on your employees if not properly handled. If a complaint is received before, during or soon after restructuring, consider an external investigator.  This is especially true if your workplace is unionized, and employer-union relations have suffered because of changes. The benefit is that the external investigator does not have a vested interested in what the company was before or after the restructure so will bring objectivity to the investigation that an internal investigator may not.

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A new law coming to effect on July 1, 2024, will remove barriers to recognizing foreign credentials to relieve B.C.’s labour shortage. The International Credentials Recognition Act will require 18 professional bodies to remove barriers to 29 professions, allowing credentials of foreign educated workers to be recognized. The new regulations will also require regulatory bodies to collect data on foreign trained workers.

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The new act, which initially passed legislature in 2023, required revision before implementation; including the removal of work experience and language requirements, which parliamentary secretary for international credentials Ravi Parmar described as being “discriminatory” and a “big stop sign” to many foreign workers hoping to be employed in B.C. Parmar said these changes will create fairer, simpler rules for foreign-educated individuals looking to work in B.C.

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Among the professions impacted by the new act are paramedics, clinical social workers, engineers, architects, teachers, early childhood educators and lawyers. The soon-to-be implemented changes are designed to speed up integration of foreign-trained workers to address current and future labour shortages, it also calls on regulatory bodies to improve transparency, cut wait times and charge international applicants similar fees as domestic ones.

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These regulations come at a time when B.C. is only one of several G7 jurisdictions competing for skilled, foreign labour. Premier David Eby worries that B.C. is not receiving enough support to integrate newcomers, with Parmar stating that ‘we need the federal government to step up”. The implementation of the International Credentials Recognition Act will remove roadblocks that, up to this point, have prevented skilled professionals with foreign credentials from establishing themselves in B.C.

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SOURCE

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In a recent decision by the Ontario Court of Appeal an Ontario trial judge was rebuked for not providing written reasons in acquitting a man accused of very serious assaults, some of which were sexual assaults. R. v. Sliwka, 2017 ONCA 426

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The trial judge acquitted the accused and said when deciding to acquit that written reasons would be forthcoming. Written reasons were never provided.

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The Crown appealed the acquittals on the basis that were no reasons for judgment and that the failure to provide reasons for the acquittals amounted to an error in law, requiring the quashing of the acquittals and the order of a new trial on all counts.

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The Ontario Court of Appeal agreed.

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The trial judge said in open court “I have now had full opportunity to carefully consider the matter and to arrive at a decision on all of the counts. My detailed written reasons will be released on Monday, March 14th, 2016.” The Court of Appeal said, “They are not reasons that in any way explain that decision or expose it to proper appellate review.”

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The Court of Appeal, relying on well-known legal principles laid down by the Supreme Court of Canada, stated:

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Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles.

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On an appeal based on the trial judge’s failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective, do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict.

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This was not the first time the trial judge had failed to provide written reasons for judgment. But the Court of Appeal said it had better be the last, concluding:

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Our order directing a new trial is a terrible result for everyone involved in this proceeding. The trial judge’s failure to give reasons, despite her repeated promises to do so, has frustrated the proper administration of justice. Nor is this the first time that this trial judge’s failure to provide reasons has required this court to order a new trial. It must be the last time.

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