By Chris D. Drinovz

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In Cressey Construction Corporation v. Parolin, 2026 BCCA 199, the British Columbia Court of Appeal confirmed that workplace arrangements established through the conduct of the employer and employee can become binding terms of an employment contract, even where they are not recorded in writing. The decision provides important guidance for employers considering changes to long-standing remote work or flexible work arrangements.

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Background

Tracy Parolin was employed by Cressey Construction Corporation for 18 years, ultimately serving as Director of Marketing. Over the course of her employment, her working arrangements evolved to include flexible hours to accommodate childcare responsibilities and, beginning in 2020, a full-time remote work arrangement. In 2021, after her reporting manager left the company, senior management expressly confirmed that she could continue working from home so long as her work continued to be completed satisfactorily. She remained a full-time remote employee for approximately three years.

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In May 2023, after Ms. Parolin requested a salary increase, Cressey instead directed her to return to the office on a full-time basis. Ms. Parolin treated the unilateral return-to-office directive as constructive dismissal and commenced a wrongful dismissal action.

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The trial judge concluded that both the flexible hours and remote work arrangement had become terms of Ms. Parolin's employment through the parties' longstanding agreement and conduct. The judge further found that the remote work arrangement had become an essential term of the employment contract and that Cressey's unilateral decision to require Ms. Parolin to return to the office without her consent or reasonable notice constituted constructive dismissal.

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The trial judge awarded 19 months of notice.

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Appeal Decision

The Court of Appeal upheld the trial court decision. Applying the principles established by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Court confirmed that constructive dismissal occurs where an employer unilaterally breaches the employment agreement by substantially altering an essential term of employment.

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The Court found that Ms. Parolin's right to work remotely was an express oral term of her employment contract and, in the circumstances, an essential one:

[67]      Ms. Parolin sought permission to work from home and as detailed above, Cressey agreed. Ms. Parolin then worked from home for three full years…In addition, the oral work from home term was not complicated, was clearly understood by the parties and was therefore sufficiently certain to be enforceable.

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The Court also confirmed that a reasonable person in her position would have viewed the mandatory return-to-office requirement, imposed without notice, as a substantial change to the terms of her employment. In describing why the return-to-work mandate was a substantial change, the Court held as follows:

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[88]      Ms. Parolin had been working from home with Cressey’s approval for approximately three years. Her work from home situation allowed her to fulfil her childcare responsibilities and scale up her hours to full-time work. Cressey was aware of Ms. Parolin’s ongoing childcare needs. A change to her location of work, without notice, would have had a significant impact on her ability to manage her childcare and work responsibilities, and it is reasonable to conclude, objectively, that someone in her circumstances would have seen this as a substantial change to her contract.

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The decision underscores that employment contracts are shaped not only by written agreements, but also by the parties' ongoing conduct.

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Key Takeaways

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• Employers should take care to ensure that any flexible remote work arrangement is captured in writing, with clear language preserving the employer’s right to require attendance at the workplace on reasonable notice. It is better to communicate expectations clearly rather than relying on a mere assumption that the arrangement was always meant to be temporary.
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• Employers contemplating a return-to-office policy, particularly for employees with long-standing remote work arrangements, should provide meaningful advance notice and engage in substantive dialogue with affected employees before implementing any such change.

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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.

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By: Michael J. Weiler & Chris D. Drinovz

Nanaimo (City) v. Mema, 2026 BCCA 203

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This is a follow up article to our earlier article on this saga.

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The British Columbia Court of Appeal has now upheld the decision of the BC Human Rights Tribunal exceeding $600,000 after finding that racial bias was a factor in the City’s decisions to suspend and terminate Mr. Mema, its Chief Financial Officer.

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Background

To refresh your memories, we will set out some of the relevant background again below.

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The City of Nanaimo hired Victor Mema as its Director of Finance in September 2015 and later changed his title to Chief Financial Officer. Mr. Mema (who was born in Zimbabwe and is Black) alleged that the City discriminated against him on the basis of ancestry, place of origin, race and colour when it suspended him in March 2018 and terminated his employment two months later.

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The dispute arose from Mr. Mema’s use of a corporate credit card, known as a P-card. The cards were not intended for personal purchases, but in practice some employees used them for personal expenses, identified those charges as personal, and repaid the City. There was no formal guideline setting out how quickly repayment had to be made.

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From 2016 to 2017, Mr. Mema accumulated a significant number and value of personal charges and was slow to repay the balance. Finance staff followed up over several months and eventually escalated their concerns to management. The City reprimanded Mr. Mema, agreed to a repayment plan, and ultimately cancelled his card. The City also retained auditors to review personal credit card use and recommend changes to policy or practice.

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Although the amount owing had been repaid, the City later suspended Mr. Mema after receiving an internal report from its finance staff alleging serious misconduct. City Council subsequently gave Mr. Mema an opportunity to be heard but ultimately voted to terminate his employment for cause.

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Tribunal Decision

Before the B.C. Human Rights Tribunal, the central issue was whether Mr. Mema’s protected characteristics were a factor in the City’s decisions to suspend and dismiss him. The Tribunal found that they were.

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The Tribunal concluded that, “however subconsciously,” stereotypes of a Black man as less honest or trustworthy factored into the internal misconduct report from Mr. Mema’s coworkers. Because the City relied on that report when suspending and terminating Mr. Mema, the Tribunal found that those decisions were tainted by discrimination.

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The Tribunal emphasized that the question was not whether Mr. Mema had breached a workplace duty or whether he had engaged in misconduct. The relevant question was whether his protected characteristics factored into the City’s conduct. It found “a distinct underlying thread of racial bias” in the way the misconduct allegations were framed, including a narrative that cast Mr. Mema’s credit card use as broader and more sinister than the established facts supported.

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The Tribunal awarded Mr. Mema remedies that included $50,000 for injury to dignity, feelings and self-respect, $583,413.40 for wage loss subject to a 25% reduction in the City’s responsibility, $10,150.04 in expenses, and post-judgment interest. It was noted in our prior article that the 25% reduction was due to the “chilling effect” on his future employment of numerous articles about Mr. Mema’s financial misconduct with his prior employer, the City of Sechelt, including the fact that Sechelt had to pursue him in court to seek repayment for personal purchases used on the corporate card, the exact same misconduct he was fired from Nanaimo for.

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Court of Appeal Decision

The City unsuccessfully sought judicial review in the Supreme Court of British Columbia and then appealed to the BC Court of Appeal. The Court of Appeal dismissed the appeal and upheld the Tribunal’s finding that there was a reasonable basis to conclude that race was a factor in the suspension and termination decisions.

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The Court reiterated several core principles of human rights law: Mr. Mema did not need to prove that the City intended to discriminate, nor did he need to prove that race was the sole or overriding factor in the adverse treatment. It was enough to show that a protected characteristic was a factor.

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The Court rejected the argument that the Tribunal had failed to consider Mr. Mema’s position of trust as the CFO when assessing the City’s decision to terminate him for cause. The Court noted that “it made no difference whether the City had the right to fire Mr. Mema for misconduct” (para. 61) and “it matters not whether Mr. Mema’s conduct may have given the City cause to terminate his employment at common law because a termination with cause may nevertheless contravene s. 13(1)(b) of the Code if it is racially motivated” (para. 63) holding:

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[64]      The City submits that the Tribunal could not decide whether Mr. Mema’s misconduct was a factor in the City’s decision to terminate without meaningfully engaging in an analysis of the misconduct.  But the issue before the Tribunal was not whether Mr. Mema’s misconduct was a factor in the City’s decision.  Undoubtedly, there were many factors.  Misconduct and a racist motivation could co-exist.  Only the presence or absence of the latter was relevant.

Another key argument on appeal was that the misconduct report was effectively an employee complaint and that the City should not be responsible for whatever alleged subconscious biases another employee may have held. The Court rejected that argument as well by stating as follows:

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[79]      I reject the City’s submission.  In my view, the distinction drawn by the City between policies, rules, and decisions, on the one hand, and employee complaints, on the other, is unprincipled and unsound.  While it is true that the City has no control over the subconscious biases that may motivate employee complaints, it is in control over how it handles complaints, and the decisions it makes in reliance on them.  The City Council chose to suspend Mr. Mema, and later to terminate him.  Nothing forced its hand.  In choosing to take action based on an employee complaint without full investigation, it assumed the risk that the complaint rested on an insecure foundation.  

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What was surprising to us is that the City did not appear to challenge the Tribunal’s finding of a general subconscious bias in the first place which the Tribunal clearly stated was not grounded in any direct (or even circumstantial) evidence but seemed to rely entirely on “historical disadvantage experienced by the group”.  

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We question however whether the City could have done anything to change the result. If they had done an external investigation which confirmed the misconduct without any bias, would the process still not have been found to be tainted by the original report? How could the employer “clean” the ultimate decision to terminate? What about the fact that Mr. Mema was offered the chance to speak to Council? Could it be argued that this eliminated any discrimination?

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Practical Takeaways for Employers

This result would be extremely difficult for most if not all employers to accept and in our view undermines the trust necessary to have in our adjudicative process. Where hundreds of thousands of dollars are awarded based on a connection that was assumed (not proven), it creates an incredible uncertainty, not to mention the chilling effect on employees and other whistleblowers who are acting in good faith and reporting financial and other misconduct, particularly in a public organization.

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All of this is occurring in the underlying context of extraordinary adjudicative delay. In a recent presentation, the BC Human Rights Tribunal confirmed that complaints are now being vetted and forwarded to employers 2 years after being filed, and the average time for decisions is now down to 5 years from the date of original filing, and this is an improvement!

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Employer must now be extremely cautious when investigating misconduct against any racialized individual. Mema demonstrates that courts and tribunals will look beyond the serious misconduct and examine how the employer reached its decision. A disciplinary outcome that may appear justified can still be found to violate human rights legislation if the process was tainted or biased in any way, including if subconscious bias is found to have influenced the investigation, the report, or the decision-making process.

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The case also shows the risk of relying too heavily on a single internal narrative produced by co-workers without having an external investigation done. Where there is a possibility that an internal complaint is only assembling partial facts or creates a suspicious or exaggerated story, decision-makers should pause before treating the report as a reliable foundation for discipline without outside verification.

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When investigating workplace misconduct and making disciplinary decisions, employers should keep the following points in mind:

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• ‍Vet from the beginning. Had the City done some basic due diligence on Mr. Mema, they would have found his past misconduct with Sechelt and avoided this case altogether.
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• Cause is not a complete answer. A termination for cause may still breach human rights legislation if a protected characteristic plays any role in the decision.
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• Investigate thoroughly and objectively. Employers should not rely uncritically on one employee’s report or account, especially where the allegations are serious and the consequences are significant.
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• Test the factual foundation. Decision-makers should distinguish between established facts, assumptions, inferences, and speculation before imposing discipline.
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• Consider whether bias may be operating indirectly. Bias does not need to be intentional or overt. Employers should assess whether stereotypes or assumptions may have shaped how concerns were framed, investigated, or escalated.
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• Use independent support where appropriate. In serious or sensitive matters, an independent investigator or outside advisor may help ensure the process is fair, impartial, and evidence-based.
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• Document the decision-making process. Employers should be able to show how they assessed the evidence, considered the employee’s response, and separated legitimate misconduct concerns from potentially biased reasoning.
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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.

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It's 9pm. The kids are finally down, the house is quiet, and I'm standing in the kitchen realizing I survived the t-ball/gymnastics gauntlet on nothing but half a cheese string. I do what any exhausted parent does: summon a sushi platter from DoorDash.

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My dasher arrived looking exactly how I felt. Turns out she is a fellow parent who fits this delivery hustle in after her own kids are asleep just to keep up with the rising cost of music lessons. It's a wild cycle: I'm paying her to bring me California rolls so I don't have to move, and she's delivering them so her kid can master Mozart.

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We've become completely reliant on the "convenience economy" and it's built on the backs of people like her - the gig workers. In professional terms, "gig work" includes someone who is an independent contractor juggling app-based tasks like ride-hailing or delivery. In reality, gig work is the engine that keeps our chaotic lives running, one late-night spicy tuna roll at a time.

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A lot of British Columbians are doing it. Some estimates suggest BC has one of the highest concentrations of gig workers in Canada (around 10% of workers). With the cost of living on the rise, it is no surprise that approximately 35% of gig workers rely on this type of work to supplement their main income source.

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BC is setting the bar for gig worker protections in Canada. The province essentially looked at the gig economy and said: "Maybe people delivering your burrito bowl at 2am in the rain should have at least sooooooome labour protections."

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Since 2024, BC has introduced protections specifically for app-based ride hail workers and delivery workers that are among the first of their kind in Canada. They include

1. Guaranteed minimum wage for "engaged time" at 120% of BC's minimum wage;
2. Per-kilometer expense reimbursement;
3. Protection of tips from deductions;
4. WorkSafe BC coverage for injuries;
5. Pay transparency before accepting jobs; and
6. Occupational health and safety protections.

BC also expressly recognizes that simply calling someone an independent contractor does not magically make it true, regulators and courts still look at the actual relationship.

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Importantly, BC's approach is still evolving. The province is actively reviewing whether the current protections go far enough.

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To me, having some protections in place feels fair when a gig worker's day is controlled by an algorithm, customer ratings, surge pricing, GPS tracking, and the threat of "deactivation".

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As previously discussed in our article of May 6, 2026,  two major court decisions (J.D. Irving, Limited et al. v. Wolastoqey Nation from New Brunswick and Cowichan Tribes v. Canada (Attorney General) from BC) have recently reshaped the legal landscape around Aboriginal title and private land ownership in Canada, raising fundamental questions for governments, developers, and property owners.

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Two courts - two different answers, and the Supreme Court of Canada isn’t stepping in just yet. In May 2026, the Supreme Court of Canada declined to hear the Wolastoqey Nation’s appeal of the New Brunswick Court of Appeal’s decision which held that Aboriginal title and fee simple ownership cannot exist, and that instead, courts may recognize a “finding” of Aboriginal title over private lands to support claims for compensation against the Crown. The Supreme Court of Canada’s decision leaves New Brunswick law clear: Aboriginal title cannot be declared over privately held lands - only compensation from the Crown is available. Meanwhile, the BC Supreme Court’s decision in Cowichan Tribes went the other way, declaring Aboriginal title over land that included private parcels.

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The Supreme Court of Canada’s refusal to weigh in on the New Brunswick case doesn't signal agreement or disagreement with either ruling, it simply means the Court wasn't ready to decide this issue without a full trial record. That Canada-wide resolution will likely have to wait until the Cowichan Tribes case works its way through the BC Court of Appeal and eventually reaches the Supreme Court of Canada, a process expected to take several years.

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In the meantime, Aboriginal title litigation continues. The BC Court of Appeal recently expanded a title declaration in Nuchatlaht v. British Columbia, covering over 200 km² of Nootka Island, though notably, no private lands were involved.

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The bottom line: the law remains unsettled and different across provinces. Real estate investors, developers, and lenders should continue to monitor these developments closely.

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On May 15, 2026, the Supreme Court of Canada created the tort of intimate partner violence as a distinct legal basis for survivors to seek financial compensation separate from family law entitlements and other torts like sexual assault and battery.

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This landmark decision in the case of Ahluwalia v. Ahluwalia establishes a new legal pathway for individuals to sue for patterns of coercive and long-term abuse that existing civil claims, like assault or battery, may fail to adequately address.

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To succeed in a claim under this new tort, a plaintiff must typically demonstrate a pattern of behavior within an intimate partnership and prove three elements:

1. The abusive conduct arose in an intimate partnership or its aftermath;
2. The defendant intentionally engaged in that conduct; and
3. That the conduct, on an objective measure, constitutes coercive control.

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At paragraph 5, the Court held “…Harm flows from proof of the intentional wrong because coercive control directly interfered with the plaintiff’s legal interests in dignity, autonomy, and equality within an intimate partnership. The extent of that harm may warrant greater or lesser quantum of damages, depending on the circumstances”.

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This decision has broader implications for survivors of sexual abuse generally. Historically, most civil sexual abuse claims pleaded the torts sexual assault and battery. In summary, these claims require a plaintiff to prove either non-consensual physical contact of a sexual nature or intentional creation of fear or apprehension of imminent sexual contact. The onus then shifts to the defendant to prove consent, either express or implied.

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Survivors and trauma-informed practitioners know that abuse is often larger than a single incident. Grooming, coercion, manipulation, dependency, threats and psychological domination can also shape a survivor’s ability to consent, resist, report, or leave. Those harms are real, often deeply relational and ongoing and are not necessarily captured in the analysis of the torts of sexual assault and battery.

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By recognizing patterns of coercive and degrading conduct as actionable in their own right, the SCC has signaled a growing understanding that sexual abuse cannot always be reduced to discrete events viewed in isolation.

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This decision creates a distinct civil pathway for survivors to seek compensation for harms that have too often been minimized or misunderstood.

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The history of the decision is important, because the initial claim was advanced as a tort of family violence, a much broader tort.

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The trial decision by the Ontario Superior Court of Justice initially created this broader tort of family violence.

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The Ontario Court of Appeal overturned the lower court’s decision, suggesting existing torts like assault and battery were sufficient to address the matter.

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The SCC reversed the ONCA decision, but narrowed the scope of the tort to intimate partner violence. The SCC pointed out the unique nature of romantic relationships and the vulnerability and harm that can flow from them. The Court also found the tort of family violence to be too broad.

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The applicable limitation period has not yet been determined and may be addressed in future either by the courts and/or through legislative reform.

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If you are a survivor of intimate partner violence, you have options. Taking the first step to come forward can be difficult, but our trauma-informed legal team is here to discuss your options and support you without judgment when you are ready.

Joint ventures can be an effective way for investors and developers to share risk and capital on real estate projects, but financing arrangements must be carefully structured from the outset.

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Here are 4 key financing issues to consider in any joint venture:

• Guarantees and Liability: Lenders often require personal or corporate guarantees and joint and several liability, meaning they can go after any one of the joint venturers for the entire debt, making it important for each party to a joint venture to understand its exposure before financing is secured.
• Financing Shortfalls: The joint venture agreement should clearly address how cost overruns, repayment deficiencies, or sale shortfalls will be allocated between each party to the joint venture.
• Separate Mortgages: Some joint venture agreements will allow each joint venturer to separately mortgage its interest in the property, regardless of what the other joint venturers do. If one partner can mortgage its interest independently, the joint venture agreement should limit the principal amount and interest that can be charged, require lender compliance with the joint venture agreement, and protect the non-mortgaging partner in the event of default or enforcement by the lender.
• Funding Discrepancies: Where partners contribute capital at different times or in different amounts, staged funding obligations and clear dispute resolution provisions will help avoid conflict.

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Two major court decisions have recently reshaped the legal landscape around Aboriginal title and private land ownership in Canada, raising fundamental questions for governments, developers, and property owners.

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Aboriginal rights and title, protected under Canada’s Constitution, were never fully defined, leaving courts to determine their scope over time. Historically, Aboriginal title claims focused on government-owned Crown land, but recent cases have expanded the discussion to privately-owned property.

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In Cowichan Tribes v. Canada (Attorney General), the British Columbia Supreme Court made history by recognizing Aboriginal title over property that was owned by private landowners. The Court found that Aboriginal title and private ownership can coexist, and that Crown grants of land do not necessarily extinguish underlying Indigenous rights. While private landowners were not directly impacted in this case, the decision raises the possibility that fee simple interests could be challenged in future proceedings. The Court encouraged negotiated solutions between the Province and Indigenous groups to reconcile overlapping interests.

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However, in J.D. Irving, Limited v. Wolastoqey Nation, the New Brunswick Court of Appeal rejected this approach, holding that Aboriginal title and fee simple ownership cannot coexist. Instead, courts may recognize a “finding” of Aboriginal title over private lands to support claims for compensation against the Crown, but not to disturb private ownership.

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These conflicting rulings create significant uncertainty nationwide, particularly as both cases move through the appeals process and will likely be decided by the Supreme Court of Canada. For now, most real estate transactions remain unaffected, but enhanced due diligence is increasingly important when buying or refinancing your property, especially for properties within or near asserted Indigenous territories or where developments may impact Aboriginal rights.

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Everyone has the right to feel safe at work. In BC that right is enshrined in law, meaning employers have a legal duty to provide a workplace free from harassment and bullying.

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Despite the law and employers’ best efforts, workplace harassment and bullying can still arise and can include:

• Verbal abuse or intimidation;
• Discriminatory comments;
• Persistent unwanted behavior;
• Psychological harassment; and
• Unwanted sexual advances or touching.

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WorkSafeBC policies and the BC and Canadian Human Rights Codes offer protections for workers. For example, under WorkSafeBC policies, employers must have procedures in place to address complaints and investigate concerns. Failing to do so can expose the employer to legal risk.

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If you are experiencing harassment or bullying, consider the following steps:

1. Report the issue internally (only if you believe it is safe to do so);
2. Keep detailed records, including dates, witnesses and copies of communications; and
3. Seek legal advice about your options which may include, but are not limited to the following:

• Summary legal advice;
• Support in communicating about the matter with your employer;
• Engaging in workplace dispute resolution processes;
• Request for a workplace investigation;
• Filing a complaint with WorkSafeBC;
• Filing a lawsuit for wrongful or constructive dismissal; and
• Making a complaint to the BC or Canadian Human Rights Tribunals.

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You do not have to tolerate a toxic work environment. Connecting with a lawyer can help you understand your options and take steps to protect your wellbeing and career.

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If you are experiencing workplace harassment or bullying, contact KSW to help you move forward with clarity and support.

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Losing your job can be overwhelming, especially if it catches you by surprise. Though minimum termination requirements are set by the BC Employment Standards Act, employees are often entitled to more under the common law, collective agreements or other legislation.

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One of the most common issues that arises termination is whether the employee was provided adequate notice or pay in lieu of notice. If inadequate notice or pay in lieu of notice is provided, it may be considered wrongful dismissal. In determining what period or notice or pay in lieu of notice is appropriate, a court will consider factors like your age, position, length of service and ability to find similar work.

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When an employee is dismissed, an employer will typically offer a severance package and ask them to sign documents. Many employees mistakenly believe the must accept the package and sign paperwork—that is not the case! You are not obligated to do so and have the option to consult with and have the package reviewed by a lawyer. Understanding your rights can bring peace of mind and may make a significant financial difference.

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If you have been dismissed, it is important to take these three simple steps:

1. Avoid signing anything right away
2. .Request any details in writing; and
3. Get legal advice before responding or accepting an offer.

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If you have missed any of these steps, it may not be too late. Sometimes it only takes a short conversation with a lawyer to clarify whether the offer you received is fair.

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If you have been terminated, contact KSW Lawyers. We can help you move forward with clarity and support.  

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