For additional information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please also review the following articles:

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• Workplace Injuries and Workers Compensation Claims
• Overview of Workers’ Compensation in British Columbia
• WorkSafeBC Claims Guide for Injured Workers
• Who is Covered by Workers' Compensation Act?

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In today's dynamic work landscape, understanding the distinction between independent contractors and employees is crucial. This difference extends to WorkSafeBC coverage, and it's a topic of paramount importance for employers and individuals in British Columbia. WorkSafeBC's Personal Optional Protection (POP) offers an optional safety net, providing workplace disability insurance, health care, wage loss benefits, and rehabilitation support to those who choose to participate. But who exactly qualifies as an independent contractor, and what are the implications for their WorkSafeBC coverage?

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What is Personal Optional Protection coverage?

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Independent Contractors can purchase Personal Optional Protection (“POP”) coverage from WorkSafeBC.  POP is optional workplace disability insurance, which may entitle an injured person to health care, 90% of their wage loss, and rehabilitation benefits.  Registering for WorkSafeBC POP turns an independent operator into a worker for the purposes of the compensation provisions under the Workers Compensation Act, RSBC 2019, c 1 (the “Act”). The extent of benefits depends on how much wage loss coverage is purchased.  As of 2023, the minimum monthly coverage is $2,700, while the maximum is $9,400 or the amount equal to your monthly earnings, whichever is lower.

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Worker or Independent Operator?

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Distinguishing between a worker and an independent operator has been contentious.  Proprietors and partners in a partnership who operate independent businesses are not automatically covered by WorkSafeBC.

Section 4(2) of the Act describes an independent operator as someone “who is neither an employer nor a worker.”  An independent operator may be a sole proprietor or a partner of a partnership.  Meanwhile, the Act defines a worker as an individual performing a contract of service (whether in writing, oral, express, or implied) who does not have an independent business under that contract.  A worker is paid by wage, salary, commission, piecework, profit sharing, or other means.

Policy Item AP1-1-1 of WorkSafeBC’s Assessment Manual provides factors to consider in distinguishing between a worker and independent operator:

(a) Control: WorkSafeBC considers the ability, authority, or right of the person for whom the work is done to exercise control over the individual doing the work.  The greater the degree of control, the more likely the individual doing the work is engaged under a contract of service.

(b) Chance of profit and risk of loss: Whether the individual doing the work has an opportunity to make a profit, and whether the individual doing the work will risk a loss.  Profit is not renumeration based, rather the difference between revenue earned and expenses incurred.

(c) Provision of major equipment: Whether the individual doing the work is required to provide assets used to generate revenue and needed to perform the work.

(d) Business integration:  WorkSafeBC considers whether the individual doing the work has or continues to have an independent business in existence during the course of the work.  WorkSafeBC may also consider who is best able to fulfill the occupational health and safety and other obligations of an employer under the Act.

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Weighing these factors will depend on the context of the relationship.  WorkSafeBC may also consider the structure and customs of the industry, the parties’ intentions, and the terms of the contract.
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These are factors similarly considered in an employment context when distinguishing an employee from a contractor.   WorkSafeBC adopts common law’s general concept of contract of service but does not adopt all its technical rules.  This means coverage under the Act may commence even though by common law principles no contract of service yet exists (Policy Item AP1-1-1).  
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Review Division decision no. R0304257 dated July 19, 2023, assessed whether the Board appropriately classified a finishing carpenter as a worker.  The employer appealed the Board’s decision which found that the individual was a worker of the company and entitled to coverage under the company’s account.  The employer became responsible for reporting payroll and paying assessments on the worker’s earnings.  The employer advocated that this individual did not work solely for them.  
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The Review Division applied the above-noted Policy Item AP1-1-1 factors.  The Review Officer found that the finishing carpenter “would not likely have a significant degree of control over how or where the work is performed.”  The individual advised that he provides his services on an hourly basis and that it does not appear that he would have a chance of profit and risk of loss.  Further, the finishing carpenter is expected to provide his own hand tools, ladders, and consumables, but not any major equipment.  Lastly, the finishing carpenter worked on projects controlled by the employer.  The employer was found to be the applicable body to fulfill the occupational health and safety obligations under the Act.  As a result, the finishing carpenter was deemed a worker and the employer became responsible for associated premium increases, if any.  
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What is intriguing about the Review Division’s decision no. R0304257 is that the finishing carpenter applied for coverage with the Board.  During the assessment, the finishing carpenter affirmed that he had a contract with the company to perform services on a labour-only basis.  It appears that the Board gave weight to the fact that he was not working with any other companies at the time of his application—which is a key consideration for employers working purported independent contractors going forward.

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What Does All This Mean

In essence, the fine line between independent contractors and employees is not always straightforward, and the implications are significant. How the parties label their working relationship is not determinative of whether an individual is a contractor and responsible for their own WorkSafeBC coverage. It’s about the level of control, profit opportunities, risk of loss, equipment provision, and business integration.

Recent decisions, such as the case of the finishing carpenter above, demonstrate that WorkSafeBC's assessments can carry substantial consequences for both individuals and employers. As an employer, it's crucial to understand these nuances, and for individuals, it's vital to consider your coverage options carefully.
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In the ever-evolving landscape of employment law, the key takeaway is that assumptions about your employment status aren't enough. Whether you're an employer or an independent contractor, understanding the nuances of WorkSafeBC coverage and the factors that influence it is essential to protect your rights and financial well-being. So, before you make any assumptions or decisions, consult with legal professionals who specialize in employment law to navigate the complex terrain of WorkSafeBC coverage with confidence. Our experienced team is here to help!

Note to Readers: The information in this bulletin is for general guidance only and does not constitute legal advice. It is based on the current laws and regulations in effect at the time of writing, but may be subject to change in the future. The blog post does not take into account the specific circumstances of any employer or employee, and should not be relied upon as a substitute for professional legal counsel.

If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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Are you a federally regulated employer in Canada? If so, you may be wondering about the key differences between employees and contractors for your industry. In this blog post, we will explain some of the factors that distinguish these two types of workers and why it matters for your business, with a focus on the trucking industry.

Examples of federally regulated workplaces include:
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1. air transportation
2. banks, including authorized foreign banks
3. first Nations Band Councils (including certain community services on reserve)
4. port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders
5. road transportation services, including trucks and buses, that cross provincial or international borders
6. any business that is vital, essential or integral to the operation of a federally regulated industry.

These workplaces (among others) are governed by the Canada Labour Code (the “Code”), which governs employer/employee relationships in these workplaces.

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Employees vs Contractors: What's the Difference?

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An employee is a person who works directly under your control. A contractor, on the other hand, is generally a person provides a specific service for a fee. The key difference between an employee and a contractor is the degree of independence that they have. In other words, the greater the degree of control over the individual, the more likely it will be that they will be classified as an employee.

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Why Does it Matter? Employees

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Employees are entitled to minimum employment standards, health and safety legislation, and other legal protections such as:
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1. minimum wage;
2. overtime pay;
3. vacation pay;
4. statutory holidays;
5. severance pay;
6. maternity and parental leave;
7. sick leave;
8. bereavement leave; and
9. work-related injury.
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Employees also have the right to join a union and engage in collective bargaining with their employer.
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Notably for federally regulated workplaces, unlike workplaces governed by the British Columbia Employment Standards Act or other provincial legislation, the Canada Labour Code provides a unique protection to federally regulated employees. Specifically, the Code protects federally regulated employees from “unjust dismissal” which, in short, prevents federally regulated employers from terminating some employees without a valid reason. This is a significant limitation on federally regulated employers as the Code allows for a wrongfully dismissed employee to be forcefully reinstated to their role with back pay, which can often exceed the employee’s entitlements at common law. Therefore, it is even more essential for federally regulated industries (e.g. interprovincial transport) to ensure that any contractors they employ are contractors vs. employees.

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Why does it Matter? Contractors

Contractors are not employees and thus, do not enjoy the protection of employment standards legislation.

Contractors are responsible for their own taxes, insurance (including WCB), benefits and expenses. This also means that employers must ensure that it is clear that the contractor is responsible for, for example, remitting applicable taxes to the Canada Revenue Agency (“CRA”).

Contractors also have more control over how they perform their work and when they work. Contractors have a greater risk of profit or loss depending on their business performance.

Contractors also typically should be submitting regular invoices for their work.

How to Determine the Status of a Worker?

There is no definitive test to determine whether a worker is an employee or a contractor. Rather, the court, tribunal or other adjudicator will take a holistic view of all of the factors, which include:
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1. Degree of Control: Who controls how the work gets done and when? Employees usually have less control over their work process than contractors. Using the trucking industry example, can the worker decline shifts or choose their route?
2. Ownership of equipment: Employees usually use equipment owned by their employer's company, while contractors use their own tools (e.g. truckers who lease or own their own trucks are more likely to be considered contractors).
3. Financial risk: Who bears the risk of profit or loss from the work? Employees have regular salaries or commissions to rely on for compensation. Contractors have a greater risk of profit or loss depending on their business performance.
4. Integration: How integrated is the worker into the employer's business? Employees are usually more integrated than contractors who may work for multiple clients.
5. Independence: Is the “contractor” permitted to service other clients? If not, this will weigh in favour of the contractor being, at minimum, a “dependent” contractor who is entitled to reasonable notice of their termination.

Although a written contract between the parties is not conclusive, a properly drafted agreement may assist in making it more likely that the contractor will be deemed to be a contractor vs. an employee.

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What Happens if a Contractor is Found to be an Employee?

If there is a complaint against an employer to the Canada Revenue Agency, the Federal Labour Program (federally) or Employment Standards Branch (provincially regulated employers), either one could launch an entire audit over the business and all contractors/employees, to assess their true status.
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If the CRA finds someone to be an employee, both the employee and employer would be assessed and have to pay income tax, CPP, EI that should’ve been remitted.
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If the Employment Standards Branch receives a complaint and does an audit, the employer would have to pay vacation pay, statutory holiday, overtime and potentially reasonable notice or severance pay (see Why does it Matter? Employees list above).
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For federal employers, if there is a termination issue, the Labour Program could order the employer to reinstate the employee with back pay under the unjust dismissal remedy (see final paragraph from Why does it Matter? Employees section above).
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Conclusion

Employers, and especially federally regulated employers, need to be aware of the key differences between employees and contractors as this will significantly affect the worker’s rights and obligations.
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To help prevent potential issues, we recommend that:
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1. you reach out to one our employment lawyers if you are uncertain regarding whether you are federally or provincially regulated;

2. you have written employment agreements for your employees, and written service agreements with your contractors; and

3. are clear on which of your workers are contractors vs. employees.

Note to Readers: The information in this bulletin is for general guidance only and does not constitute legal advice. It is based on the current laws and regulations in effect at the time of writing, but may be subject to change in the future. The blog post does not take into account the specific circumstances of any employer or employee, and should not be relied upon as a substitute for professional legal counsel.
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If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

First of all, congratulations! Second, put your plans and expectations in writing.

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While many are familiar with the term “pre-nuptial agreement”, in BC, we also have “cohabitation agreements”. These are similar agreements that are drawn up when you start living with your partner, whether you intend to marry or not.

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Having a cohabitation agreement does not mean that you expect your relationship to end. In fact, many who have one are lucky enough to never use it. However, if it does end, you have a legally binding contract already in existence that sets out what you and your partner would like to occur. As lawyer’s we try to make these agreements as strong as possible to reduce the risk of it being varied and to minimize stress and conflict for you at the time of a separation.

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After years of requests from real estate developers, the federal government announced on September 14th that it will exempt new rental apartment buildings from paying 5% GST on construction costs. The intention is to incentivize developers to proceed with constructing rental apartments, which should increase the availability of rental units and ideally bring down rent prices.

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Real estate developers have argued that rising costs make it financially impossible to build rental apartments, which limits supply and drives up rents. One of the reasons being that rental buildings require the developer to pay 5% GST on its construction costs, since there is no ultimate buyer of the unit. For condo and townhome sales, the ultimate buyer pays the 5% GST instead of the developer. For many developers, the GST on rental projects alone could be millions or tens of millions dollars, which is often the difference between whether a developer decides to build or not.

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The impact of this policy will remain to be seen, but giving developers a break on GST should see more rental units constructed, ultimately benefiting supply.

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If you have any questions regarding this new policy or real estate law in general, reach out today.

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The law surrounding constructive dismissal is full of potential pitfalls, both for employers, who may inadvertently constructively dismiss an employee and expose themselves to significant liability for failing to provide adequate notice, and for employees, who are faced with the difficult decision of asserting that a constructive dismissal occurred, or accepting an unwelcome change to their employment contract.  In order to successfully avoid these pitfalls, it is important for to have a basic understanding of the circumstances under which a constructive dismissal may occur.  

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At its core, constructive dismissal rests on assertion that employees are entitled to rely on the terms of their contract of employment remaining fixed, and that fundamental changes to the employment contract cannot be made without the employee’s consent.  A constructive dismissal occurs when an employer, through their conduct, shows that the employer no longer intends to be bound by the contract of employment.

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What is a constructive dismissal?

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In the leading case of Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, [2015] 1 SCR 500, the Supreme Court of Canada articulated a two-branch test to determine whether a constructive dismissal has occurred.  First, a constructive dismissal can occur through a single unilateral act that breaches an essential term of the contract of employment.  Secondly, it can also occur where the employer’s conduct, taken as a whole, shows the employer no longer intends to be bound by the employment contract.  Notably, a written employment contract is not required for this doctrine to apply, although the absence of a written contract can make determining whether a breach has occurred more challenging.

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The first branch requires that the unilateral change must substantially alter an essential term of the employment contract.  There are two stages to this analysis.  First, it must be shown that there was a breach by way of a unilateral change by the employer.  Secondly, it must be shown that a reasonable person in the employee’s situation would feel that the breach was a substantial change to an essential term.  This is a highly-fact driven exercise, and will depend on the exact circumstances of the change.  

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The second branch requires a finding that the employer has shown they no longer intend to be bound by the employment contract.  The key question is the employer’s perceived intention; ie, whether a reasonable person in the same circumstances as the employee would view the employer as intending to no longer be bound by the contract.  This does not require a single act, but can occur through the cumulative effect of past acts.

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Examples of constructive dismissal

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A non-exhaustive list of conduct that Canadian courts have found to constitute constructive dismissal is found below.  It is important to note that this conduct is only sometimes, but not always, sufficient to establish a constructive dismissal:

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• Demoting an employee to a position of lower prestige and status;
• Failing to provide a promised promotion;
• Requiring an employee to perform a fundamentally different type of work or systematically removing an employee’s duties;
• Changing the employee’s work location, such as a transfer to another city, province or country;
• Changing the employee’s hours of work;
• Changing the employee’s work conditions, such as a transfer to a smaller office with reduced amenities and access to other employees;
• Engaging in abusive behaviour that renders continued employment intolerable, such as verbal abuse, foul language, unsubstantiated accusations, or threats of termination;
• Failing to prevent the harassment of an employee by co-employees;
• Breaching the employee’s privacy, such as through unwarranted surveillance;
• Suspending an employee, either for discipline or for administrative reasons;
• Removing an employee’s support infrastructure and preventing them from accessing information and meetings necessary for them to perform their duties;
• Demanding an employee resign;
• Laying an employee off temporarily, when a lay-off is not explicitly authorized by the employment contract or by past conduct;
• Placing an employee on probationary status without cause; and
• Changing an employee’s remuneration significantly

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When does a constructive dismissal kick in?

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Once an employee has been confronted with a unilateral change to the employment relationship, they must choose to accept the change, or reject it and refuse to go to work.  Until the employee has indicated, by action or by word, that they do not accept the change, there is no constructive dismissal.   An employee will typically be allowed a ‘reasonable’ period or time, typically two or three months, to decide whether they wish to accept the repudiation of the contract.  In certain cases, a delay of six or even seven months has not found to constitute condonation.  However, an employee is not entitled to wait forever before asserting constructive dismissal, and delaying too long will result in a court finding that an employee condoned the change to the employment relationship.  

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It is critically important for both employees and employers to understand that every case is fact-specific and what is a constructive dismissal in one case may not be one in another.  Because of this, one of the challenges that confronts both employers contemplating a change to the employment relationship, and employees faced with a change, is that it often be unclear when the line has been crossed and grounds for asserting a constructive dismissal actually exist.  

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The consequences for both employees and employers in failing to correctly determine if a constructive dismissal has occurred can be significant. From the employer perspective, for example, a good faith change to the work location of a long-term employee could result in paying up to 24-months salary for failing to provide adequate notice.

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From the employee perspective, if the employee assert a constructive dismissal and the court finds that the employer did not actually dismiss them, the employee will be found to have resigned, and to have lost any entitlement to notice or wages in lieu of notice.

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Conclusion

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Employers should consult with legal counsel before making significant changes to the employment relationship, to ensure that they are not inadvertently terminating an employee and exposing themselves to potentially significant claims for constructive dismissal.  

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Employees who believe that they have been subject to a constructive dismissal should seek legal advice as soon as possible to avoid inadvertently condoning a fundamental change to the employment relationship, and to determine if the change is sufficient to constitute constructive dismissal.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

 As part of their licensing process, realtors in British Columbia will learn about many laws that will impact their day-to-day work. However, there are a few lesser-known legal obligations that can have a massive impact on your career. In particular, these are 3 legal obligations that every realtor in the province should keep top of mind:

‍1. Earning Commissions Under a Listing Agreement‍

Listing Agreements must be absolutely clear about how commission is earned and how long the property can be listed for. Occasionally, realtors will have a client sign a listing agreement, and then verbally agree to change some of the terms in order to give the client a deal. The final listing agreement must exactly match what the realtor and client agreed to, and the agreement must be signed by the client. A realtor can be shorted on their commission if the listing agreement doesn’t accurately reflect what they’ve agreed to with the client, or if someone signed on behalf of a client company but was not an authorized signatory.

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There have been court cases in BC where clients have tried to avoid paying their realtors the commission owed under a listing agreement, arguing that the person who signed the listing agreement on behalf of the client company was not one of the company’s authorized signatories (in most cases, a director or officer). Realtors should always ensure that the person signing a contract is authorized to bind a company to that contract.

2. Realtor’s Duty of Care and Avoiding Negligence Claims

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A buyer can only sue a listing agent for negligence if the buyer can establish that:
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1. The listing agent owed a duty of care to the buyer; and
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2. The listing agent was negligent in carrying out that duty (i.e., the listing agent fell short of the standard of care).

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A listing agent is obligated to disclose all material facts known to them that could affect a reasonable purchaser’s willingness to enter into an agreement to buy a property.

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Usually, the listing agent can satisfy this duty by asking the seller and other sources for information about the property. The realtor is not obligated to inspect the actual property or independently verify what they’ve been told, unless they have a reason to doubt what they’ve been told.

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Damages for negligence claims are typically equal to the actual loss suffered as a result of the realtor’s actions. In many cases, this would be the difference in the property’s value had the defect been disclosed to the buyer.

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This issue often comes up in situations where agents recommend to their clients that the inspection subject clause be removed from the contract, but there is reason to believe there are issues with the property (e.g., drainage issues) which are not disclosed to the buyer.

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As a realtor, always tell your clients to seek independent legal advice, but the key takeaway here is that you are obligated to discover facts relating which a reasonably prudent agent would have discovered in order to help their clients avoid error, misrepresentation, or concealment of facts with respect to a certain property.

3. Obligations To Collect or Pay GST

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Although realtors should never give tax advice (refer clients to tax lawyers or accountants for tax advice, if needed), realtors are often asked by their clients to provide off-the-cuff tax information, especially regarding GST. Many realtors will often provide mistaken information about GST. If you are asked by a client to provide some commentary on GST, ensure that you keep these key points in mind:

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1. GST payable on deposits: GST is payable on the entire assignment amount – not just a deposit. However, once that deposit has been applied to the full price for the property, it is subject to GST as part of the whole amount. For example, if a buyer puts down a deposit for $100,000 on a property being purchased for $1 million, no GST is payable at that time, but once the buyer pays the remaining $900,000 of the purchase price, the deposit becomes part of the total consideration paid for the purchase, and GST may be payable on the full $1 million.
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2. ‍GST on assignments: The standard form Assignment Agreement covers who pays GST between an assignor and assignee. When dealing with pre-sales, if a developer also requires its own form of assignment agreement to be signed, realtors must make sure that the GST section of the developer’s agreement does not conflict with or contradict the Assignment Agreement’s terms regarding who pays GST. The 2 documents should align exactly regarding who is responsible to pay GST.
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3. Assignments involving Non-Residents of Canada: As a realtor, you should make sure that the appropriate party remits GST to the CRA, as the CRA has the power to chase either the buyer or seller for unpaid GST, and if one party is a non-resident, it’s likely the CRA will go after the other party for the unpaid tax. This is particularly troubling for Sellers, as the Excise Tax Act makes it clear that the party selling taxable property is responsible for indicating to a buyer the amount of GST owing, and then also responsible for collecting the GST and remitting it to the CRA. The seller can only sue the buyer for not paying the GST if the Seller carried out its duties to flag for the Buyer the amount of GST that was owing.

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When in doubt, the Canada Revenue Agency provides helpful info on its website, and always remember, you can know enough to provide tax information, but do not provide tax advice. Always refer clients to a tax lawyer or accountant for detailed tax questions regarding specific scenarios.

Most people who run their own business operate through a corporation or a company as it’s commonly known. A company is a separate legal entity that acts independently. As an entity, it can do things like enter into contracts, own property and sue others.

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A company’s activities are tracked in its minute book. The minute book contains important information including the rules that govern the company, a register of the company’s directors and shareholders and resolutions authorizing the company to take certain actions such as paying dividends or obtaining loans.

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Other than it being legally required, it’s important to have a minute book in order to provide updated records to people who regularly want to see them such as shareholders, buyers and lenders.

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Generally, a minute book is kept at the company’s registered and records office. Due to the sensitive nature of the information, a lawyer usually prepares and keeps the minute book at their office. Having a law firm act as your registered and records office ensures that your minute books are kept up-to-date which can save substantial money when you are thinking of borrowing funds or potentially selling the company. Rectifying an incomplete minute book can also be very expensive.

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If you are thinking of incorporating a new company or would like to prepare a minute book for your existing company, reach out to Aman Bindra at abindra@kswlawyers.ca or call 604-591-7321 today.

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When terminating an employee in BC and Canada, it is important to remember that the concept of “at-will” employment does not exist. The law surrounding the termination of employees involves far greater consideration and obligation on the part of the employer than in jurisdictions that subscribe to “at-will” employment. Each situation will turn on its own set of facts.

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The Requirement to Provide Notice

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Unless a non-unionized employee acts in a manner that would constitute “just cause” for termination (which is a narrow category of behaviour), or the employment relationship expires at the end of a fixed term, the employer is obligated to provide the employee with either:

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• Advance notice of termination.
• Compensation in lieu of that notice.

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The employer's obligation to provide the employee with reasonable notice of termination does not apply where:

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• The employee resigns their employment
• The employment relationship is frustrated
• There is just cause for termination of employment
• The employment contract contains a valid term providing for the amount of notice to be given in the event of termination
• The employment contract is for a fixed term

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As it is often practically undesirable to have an employee continue to work after receiving notice of termination, paying out the notice period is the more frequent choice.

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The notice of termination provided to the employee must be specific and unequivocal. Moreover, it must be clearly communicated to the employee.

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In BC, there are three types of potential notice that the employer must give the employee at the time of termination of employment:

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• Statutory minimum termination notice or pay in lieu of notice.
• Common law reasonable notice.

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Alternatively, the parties may contract for a set period of notice, provided that period is not less than the statutory minimum requirements. Employers cannot contract out of the statutory minimum requirements.

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Both unionized and non-unionized employees are potentially entitled to the minimum statutory notice and severance pay. Common law reasonable notice is potentially available to non-unionized employees, but not to unionized employees who have their employment governed by a collective agreement.

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Statutory termination notice – BC Employment Standards Act

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There is a statutory minimum period of termination notice that must be given according to length of employment, outlined in the BC Employment Standards Act. Where groups of employees are terminated with a short period of time, mass or group termination notice periods may apply. The minimum standards legislation applicable to the employee must be consulted before structuring a termination package.

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Common law reasonable notice

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The notice periods that have been held to be reasonable at common law have traditionally been much longer than the minimum standards termination notice period, sometimes greater than 24 months of notice. Unless the employment contract limits the notice period to the statutory minimum, or to another amount that is greater than the statutory minimum, the employer must provide compensation for the common law notice period.

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In determining “reasonable notice” under the common law, the Courts will consider such factors as:

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• The length of service.
• The age of employee.
• The character of the position, including the degree of responsibility and the employee’s level of training and education.
• The availability of similar employment, having regard to the experience, training and qualifications of the employee.

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The employer has the choice of asking the employee to work through the notice period, or to pay compensation in lieu of such notice. If pay in lieu of notice is given, the employer is to pay the compensation to which the employee would be entitled as though the employee had worked through the notice period. The employer may also be required to continue medical and dental benefits to the employee for the duration of the notice period and pay for unused vacation time.

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Contractual notice

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An employer can control some of the uncertainties that might arise at the time of termination of an employee by clearly setting parameters in the original employment contract. While the employer cannot contract out of statutory minimums (such as minimum notice periods that must be provided on termination), contracts can be used to limit or exclude the common law concepts that would otherwise apply. For example:

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• A contract can specify that certain acts will constitute just cause or willful misconduct, effectively broadening the common law definitions of these concepts.
• A contract may also set out what period of notice will be given, how payment on termination will be structured and how various types of incentive compensation will be dealt with on termination.

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Unless the employee’s duty to mitigate is outlined in the termination provisions of the employment contract, mitigation will not apply to the termination provision amounts.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our Employment & Labour group members.

We communicate Employer updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

For those with children, moving after a separation or divorce is not as simple as it may sound. Even if you think your matter has resolved and you have an order or agreement outlining the parenting time you and the other parent have with your children, the Family Law Act and the Divorce Act create extra restrictions around moves, also known as “relocations,” that can limit your movement without first obtaining the consent of the other parent or the court.

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Relocation is one of the more complex and challenging matters to address in a family law action. The Family Law Act and the Divorce Act both address the limitations and requirements around proposed relocations, and while these Acts are similar in nature, their requirements are slightly different from one another. If you are not sure which act applies to your situation, make sure to consult with a lawyer first before taking steps to relocate.

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This article will only summarize relocation requirements under the Family Law Act. Each individual case is fact specific in these matters and they can quickly become complicated. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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What is the difference between a move versus a “relocation” pursuant to the FLA?

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Under the Family Law Act, in situations where you do not already have an agreement or court order that addresses parenting arrangements, a move that can reasonably be expected to have a significant impact on that child’s relationship with another guardian is considered a “change in residence”.

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Similarly, in cases where there is an existing agreement or court order about parenting arrangements, a “relocation” is also defined to mean that a change in the location of the child’s residence, or the residence of that child’s guardian, that can be reasonably expected to have a significant impact on that child’s relationship with a guardian or someone else that has a significant role in their life.

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What this means is, any move that will significantly impact the child’s relationship with their guardian or important person in their life, is a “relocation.” This also means that if you are the guardian to a child and you are seeking to move without the child, and that move would impact the child’s relationship with you to a significant extent, that is also considered a “relocation” and that decision comes with statutory obligations to address prior to moving.

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What is required of the parent wishing to move – either with or without the child?

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If there is no agreement or order already in place, then the guardian wishing to change the child’s address will need bring an application pursuant to section 45 of the Family Law Act to address parenting time accordingly.

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If there is an agreement or order that addresses parenting arrangements, then the guardian looking to relocate, either with or without the child, must give 60 days advance written notice to all other guardians and persons that have contact with the child, that specifies the date of the relocation, and the name of the proposed location.

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What if I don’t agree to a guardian relocating with the child?

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Object! Object! Object!

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Ideally, you will have done your best to communicate with the other guardian and persons having contact with the child to cooperate and resolve the issue of the proposed relocation with creative solutions – however, this is not always possible.

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The reality is, if you are not confident an agreement can be reached to resolve the issue, you only have 30 days to file an application for an order to prohibit the relocation. This is the only way to formalize your objection and it must be done quickly.

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Otherwise, if you do not file the application objecting to the relocation within 30 days, section 68 of the Family Law Act permits the relocation to occur on or after the date that was set out in the notice.

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Notice of relocation was given and an application for an order to prohibit the relocation was filed – now what?

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This is where things can get a little complicated. The test for the court to determine whether the relocation should be granted first depends on the current parenting time allotment. This means, it depends on whether or not the parties have substantially equal parenting time.

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Ultimately, in applications by a guardian seeking to prohibit the relocation, there are three aspects the court will consider in its analysis:

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1. Is the proposed relocation is made in good faith;
2. Is there a reasonable and workable arrangement to preserve the relationship between the child and none relocating guardian; and
3. Is the relocation in the best interests of the child pursuant to section 37 of the Family Law Act.

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The responsibility of which parent has to prove those things depends on who has the majority of parenting time or if the time is shared equally.

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What does it mean for a proposed relocation to be made in good faith?

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When the court is asked to determine whether a proposed relocation has been made in good faith by the guardian seeking to relocate, the court must consider all relevant factors, including but not limited to the following:

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1. The reasons for the proposed relocation;
2. Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
3. Whether notice was given under section 66 of the Family Law Act;
4. Any restrictions on relocation contained in a written agreement or an order.

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As you can see, considering a relocation, particularly with your child, can quickly become a complicated matter. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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