Firm

LinkedIn Post Breaches Terms of Settlement

L.C.C.v. M.M., 2023 HRTO 1138 is an interesting Ontario Human Rights Tribunal decision, centralizing around the alleged contravention of a settlement agreement.

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M.M. brought a discrimination complaint with the Human Rights Tribunal of Ontario against the corporate employer and an employee of the corporate employer. Through an early mediation, the parties were able to resolve the dispute, entering into Minutes of Settlement on June 7, 2019 (the “MOS”). The MOS specifically included confidentiality, mutual non-disparagement, and breach clauses.
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Following the settlement, M.M. posted a statement on their LinkedIn profile which stated:
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“To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the corporation] and [the individual] for sex discrimination]”.
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In the fall of 2019, M.M. added this post to the first sentence of their public LinkedIn biography in the “About” section, replacing the original post. 15 months after being posted, the employer discovered the posting and wrote to M.M. requesting them to remove the posting. M.M. did not respond, but about a month after the employer’s letter, revised the posting to read:
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“To all those inquiring, all matters have been resolved in my Human Rights Complaint against [the corporation] and [the individual] for sex discrimination”.

L.C.C. and L.C. filed an application for breach of the MOS. Following the filing of the application, M.M. removed the posting from LinkedIn.
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M.M. claimed that they did not consider the post to be in breach of the confidentiality provision of the MOS, and provided a number of reasons to defend her decision to make the posting. The Tribunal did not accept these excuses.
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The Tribunal identified that the MOS was a binding contract, and carefully analyzed the relevant principles of contract law and breach of contract. In doing so, it found that M.M. had a “duty to act in good faith” and to “have appropriate regard to the legitimate contractual interests of the contracting partner”. The Tribunal ultimately found that M.M. had not met these duties, and had breached the terms of the MOS. The Tribunal underscored in its decision that the very purpose of the confidentiality and non-disparagement provisions was to prevent reputational damage to L.C.C. and L.C. Accordingly, M.M. was ordered to repay the settlement funds, with interest, and ordered that M.M. must comply with the terms of the MOS. M.M. brought forward a request for reconsideration of this decision, which was refused.

Civil claim struck down

Civil claim struck down due to critical oversight in legal jurisdiction

Lucy Chestacow was employed as a Resident Care Attendant for Mount St. Hospital of Marie Esther Society (the “Hospital”) for over 20 years. Throughout her employment, Ms. Chestacow was a member of the Hospital Employees’ Union (the “HEU”).

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Ms. Chestacow filed a civil claim against the Hospital claiming that the conduct of some managerial employees of the Hospital created an environment that she could not tolerate, forcing her to quit. She also alleged that this conduct caused mental injuries and loss, and that the Hospital failed to accommodate her. The Hospital brought an application to strike Ms. Chestacow’s claims, citing that the court lacked jurisdiction, as such claims were under the sole jurisdiction of the HEU and WorkSafeBC (“WCB”).

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The Court agreed with the employer’s position, citing that the decision had nothing to do with the merits of Ms. Chestacow’s dispute, but rather, that the “essential nature” of her dispute was not within the jurisdiction of a civil action. Specifically, the Court found:

That a dispute with the Hospital about whether the terms of her employment were violated had to be addressed through the grievance and arbitration procedure with the HEU, as HEU had the exclusive right and obligation to represent Ms. Chestacow in this process.
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That Ms. Chestacow’s claims of mental injuries occurring at work were within the exclusive jurisdiction of WCB and the Worker’s Compensation Appeal Tribunal, pursuant to s. 127 of the Workers Compensation Act, R.S.B.C. 2019, c. 1.
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That a dispute with the HEU about how it represented her was within the exclusive jurisdiction of the British Columbia Labour Relations Board under ss. 12 and 13 of the Labour Relations Code, R.S.B.C. 1996, c. 244.
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This decision brings important considerations for unionized employees about how to seek assistance with any employment-related issues, and to tread carefully – and, importantly, seek legal advice – before bringing any civil claims involving unionized workplace issues.”

3 factors to Make or Break a Case

BACH v. BC MINISTRY OF FINANCE

Byron Bach was a unionized employee with the BC Liquor Distribution Branch (“LDB”). Mr. Bach had been employed with the LDB as an auxiliary employee since 1999. Since 1996, Mr. Bach was also employed with Save-On-Foods (“Save-On”). From 2005 to April 2021, Mr. Bach worked graveyard shifts at Save-On, and then auxiliary shifts at the LDB from 2:00PM until closing. Mr. Bach worked these shifts, full-time, in order to financially provide for his wife and three children, as his wife could not work for health reasons. In April 2021, the LDB attempted to convert Mr. Bach from an auxiliary employee to a regular employee, and subsequently, attempted to alter Mr. Bach’s working schedule with the LDB. Mr. Bach objected to the changes and filed a Human Rights Tribunal complaint alleging discrimination on the basis of family status.

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The LDB filed an application to dismiss Mr. Bach’s complaint on the grounds that it had “no reasonable prospect of success", citing Mr. Bach’s decision to hold a second job, which the new schedule would interfere with, was a “personal preference” that Mr. Bach did not hold a right to. In order to assess Mr. Bach’s complaint, the Tribunal analyzed the three requirements Mr. Bach would have to prove to make his case at a hearing – (1) he has a personal characteristic that is protected by the Code, (2) he was adversely impacted in employment, and (3) his personal characteristic was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61; British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168). Ultimately, the Tribunal found that Mr. Bach’s complaint passed the three elements needed to stave off dismissal and dismissed the LDB’s application. In doing so, the Tribunal noted that family status complaints typically are related to direct childcare duties or spousal or elder care responsibilities, whereas Mr. Bach’s complaint was “somewhat novel” in nature. It will be interesting to see how the Tribunal continues to apply this relatively new three-part test in future family status complaints, as this area becomes more expansive.

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To read the full case, click here.

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CBSA Directed to Conduct Investigation

CBSA Directed to Conduct New Investigation After "Fundamentally Flawed" Inquiry

Business

The Federal Court has instructed the Canada Border Services Agency (CBSA) to conduct a new workplace investigation, appointing a different investigator this time. This decision follows extensive allegations from a veteran border guard about enduring workplace harassment and violence.
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C.M., who joined the CBSA in 1994, reported experiencing various forms of mistreatment, including hate crimes, discrimination, physical assaults, and derogatory behaviour from supervisors, over a 25-year period from 1995 to 2020.
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In January 2023, a CBSA report concluded that none of these incidents constituted workplace harassment or violence under their guidelines. As a result, no preventive measures were taken, and the case was closed.
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Dissatisfied with the investigation’s findings and process, C.M. filed a judicial review, arguing that the investigation was procedurally unfair. The Federal Court sided with C.M., describing the process and final report as "fundamentally flawed" and ordering a new investigation by a different investigator.
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Concerns Over Procedural Fairness
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The court identified significant procedural failings in the CBSA's initial investigation, most importantly C.M. was not allowed to review or respond to contradictory statements or see the preliminary report as required in the CBSA’s Workplace Harassment and Violence Prevention Regulations Checklist before the final decision was made. The court ruled that this exclusion violated procedural fairness and warranted a fresh investigation.
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Questions on Harassment Definitions

The court's decision also raised concerns about the standards the CBSA used to define harassment and violence. The initial investigator’s findings that none of the reported incidents met these standards were a key factor prompting C.M. to seek judicial review. In this case, the investigator wrongly looked at each incident separately, and did not consider that together the incidents demonstrated a pattern of activity.

Issues with Transparency

A major issue highlighted by the court was the lack of transparency and communication during the investigative process. The judge emphasized that C.M. should have been given the opportunity to counter any unfavourable evidence and respond to claims by managers that their behaviour did not amount to harassment or violence.
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Mandate for a New Investigation

In its ruling, the court not only mandated a new investigation but also emphasized the importance of allowing C.M. to review and respond to all evidence and findings before the final report is issued. Emphasizing the importance of following the written policy at CBSA, the court stated, “The matter is referred back to CBSA for redetermination after a new investigation is conducted by a different investigator and after the Applicant has had the opportunity to see and make submissions on evidence gathered in his absence and to comment on the investigator’s preliminary report before it is sent to CBSA.”
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Furthermore, the court awarded C.M. $3,500 for costs, a pre-agreed sum between both parties.
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For more details, see Marentette v. Canada (Attorney General), 2024 FC 676 (CanLII).

A Note on Reassessments

A Note on Reassessments

As agreed by the Court, “the [Act] itself is a difficult one, and … the precise interpretation of section 152(4) is in the upper limits of those difficulties.”

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Limitation periods … are meant to promote certainty, avoid stale evidence, encourage diligence, and bring repose: see M(K) v M(H), [1992] 3 SCR 6.

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… The certainty rationale recognizes that, with the passage of time, an individual “should be secure in his reasonable expectation that he will not be held to account for ancient obligations”: M(K), supra. The evidentiary rational recognizes the desire to preclude claims where the evidence used to support that claim has grown stale. The diligence rational encourages claimants “to act diligently and not “sleep on their rights”“: M(K), supra.

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In order for the Minster to reassess beyond the normal reassessment period, the Minister has the burden of proving, on a balance of probabilities, that the taxpayer has committed a fraud or has made a misrepresentation attributable to neglect, carelessness, or wilful default in the filing of the return.

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The burden on the Minister when reassessing outside the normal limitation period is quite unlike where the Minister reassesses a taxpayer within the normal reassessment period, and may rely on a simple assumption of facts, with the onus being on the taxpayer to demolish the ministerial assumptions. Where the Minister is reassessing beyond the normal reassessment period, the Minister must prove:
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- that a misrepresentation has been made by the taxpayer;

- that the misrepresentation is attributable to neglect, carelessness, or wilful default.

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At the risk of redundancy, it is important to recognize that where the taxpayer has not committed fraud, a statute barred year may only be opened up for reassessment where the misrepresentation said to have been made is attributable to neglect, carelessness, or wilful default.

Moreover, the Minister must satisfy this burden of proof for each item the Minister reassessed outside the normal reassessment period, and may not rely upon its assumptions in the course of doing the same.

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Where a taxpayer’s filing position is bona fide and reasonable, to the extent a taxpayer may have made an error or mistake in the Minister’s view, the Court has agreed the taxpayer has not made the type of misrepresentation that would justify the opening up of years that are statute barred. Put another way, the Minister disagreeing with the taxpayer’s filing position is not enough to justify a reassessment beyond the normal reassessment period.

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Moreover, where an error committed by a taxpayer is one which a normally wise and cautious taxpayer could have committed, and the court is not persuaded that error involved negligence on the part of the taxpayer, the Minister may still be barred from reassessing beyond the normal reassessment period.

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Before the court can consider whether an assessment is correct it must first decide that it was validly made. … It is essential that before the court hears evidence on the correctness of the assessment it be satisfied that the Minister had the right to assess at all … Until the validity of the assessment that is otherwise statute-barred is established by the Minister … the taxpayer’s only onus is to show that the reassessment was made outside the normal reassessment period.

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Once the Minister has established that the reassessment beyond the normal reassessment period is proper, then the burden of proof shifts to the taxpayer as to whether the return was rightly filed.

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BC Government Restricts Rentals

BC Government Restricts Short-term rentals

In order to address the affordability crisis and provide for more long-term rental housing, the BC provincial government has introduced new regulations targeting short-term rentals such as Airbnb’s.

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Starting May 1, 2024, the provincial government has passed new laws which will limits short-term rentals to the host’s principal residence, plus one secondary suite or accessory dwelling unit, in many BC communities.

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The Province's regulations will be the “floor”, or minimum requirements, for short-term rentals, meaning that towns and cities can add more restrictive short-term rentals bylaws depending on local needs, as some have already chosen to do.

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The principal residence requirement applies across B.C. in municipalities with a population of 10,000 and over, as well as smaller neighbouring communities.

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Certain municipalities can opt in or out of the new restrictions each year, depending on if certain criteria are met, such as the rental vacancy rate in the community over the previous 2 years.

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Some smaller communities and tourist destinations (such as municipalities with populations under 10,000 that are not within 15 kilometres of a larger community, mountain resorts, and farmland) will automatically be exempt from the new restrictive laws.

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Beware the new tax!

Beware the new tax!

Business

In order to target real estate speculation and address the affordability crisis, the BC provincial government has introduced a new law taxing profits from short-term property sales.

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The government introduced the new “home-flipping” tax in its 2024 budget, stating that its aim is to discourage speculators from driving up prices.

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Under the proposed new law, the government will implement a “sliding-scale” tax on profits made from properties which are re-sold within 2 years of being purchased.

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If a property is re-sold within 1 year of being purchased, profits will be taxed at 20%. The tax rate then gradually reduces to zero for properties which are re-sold between 1 and 2 years following their purchase. For assignment purchases (such as for pre-sale condo and townhome units), the clock will begin to run on the date the assignment contract is entered into. Economists predict that this new flipping tax will lower home sales in BC by nearly 2%, but the ultimate end result remains to be seen.

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There will be exemptions for scenarios such as divorce, death, disability, and other life-altering circumstances which force a quick sale of a recently-purchased property.

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Foreign Home Buyer's Ban Extended

Foreign Home Buyer's Ban Extended

Earlier in February, the federal government announced they will extend the existing ban on foreign ownership of Canadian housing by 2 more years. The restriction, which intends to increase the amount of housing available to Canadians, will now last until early 2027.

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The ban, which prevents foreign companies and people who are not Canadian citizens or permanent residents (subject to some limited exemptions for those with temporary work permits, refugees, and international students) from buying residential property in Canada’s major population centres, was to expire on January 1, 2025, but has been extended to January 1, 2027.

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If a non-Canadian is found violating these laws, penalties could include fines and court-ordered sale of the property.

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The federal government alleges that foreign money has been flowing into Canada for years to buy up residential real estate, increasing housing affordability concerns in cities across the country, and particularly in major urban centres. The government said it wanted to extend the program because it knows Canada’s housing challenge will not be solved by the end of 2024. However, some economists have questioned whether the ban will have much effect on overall housing affordability.

2024 Canadian Legal Lexpert Directory

Chris Drinovz named in the 2024 Canadian Legal Lexpert Directory