employment and labour law conference 2014 in vancouver/media/files/insights... · "2013...

2014Employment & Labour Law

Conference

Vancouver | Friday, October 3, 2014

TABLE OF CONTENTS

About Davis LLP ..................................................................................................................................... Tab 1

Firm Profile

Employment & Labour Law Expertise

Team Biographies ................................................................................................................................... Tab 2

Peter Archibald, Q.C. Wendy-Anne Berkenbosch Maggie Campbell Pablo Guzman Michael Hamata Suzanne Kennedy Selina Koonar Cynthia Levy Larry Page Richard Press Michael Richards Allen Soltan Brian Tsuji

Performance Management and Discipline ............................................................................................ Tab 3

Tricky Issues in Setting Vacation .......................................................................................................... Tab 4

Ouch, That Hurts! Increasing Damages Awards ................................................................................. Tab 5

“You Would Be Lucky to Get this Employee to Work for You” – The Art of Providing References ........................................................................................................ Tab 6 Cross Country Check-Up: Recent Developments in Canadian Employment Law ........................................................................ Tab 7

Ontario Update ............................................................................................................... Tab A

Manitoba, Saskatchewan, Alberta Update ..................................................................... Tab B

Quebec Update .............................................................................................................. Tab C

The North Update .......................................................................................................... Tab D

Discrimination on the Basis of Family Status - What’s the Scoop? .................................................. Tab 8

Working outside the Employment Standards Act: Variances, Averaging Agreements and Exclusions ........................................................................... Tab 9

Criminal Record Checks: What You Can Do ........................................................................................ Tab 10

From Wildfires to Bird Flu: HR Emergency Preparedness ................................................................. Tab 11

Guest Speakers: Jo-Anne Weiler & Prof. Joe Weiler Presentation Materials ............................................................................................................................ Tab 12

Feedback Form ........................................................................................................................................ Tab 13

AGENDA 2014 Employment & Labour Law Conference - Vancouver

Friday, October 3, 2014

Welcome

7:30 a.m. - 8:45 a.m. Breakfast/Registration

8:45 a.m. - 8:50 a.m. Welcoming Remarks - Catherine Gibson

Individual Presentations - Session I

8:50 a.m. - 10:00 a.m. • Performance Management and Discipline – Michael Richards • Tricky Issues in Setting Vacation – Maggie Campbell • Ouch, That Hurts! Increasing Damages Awards – Wendy-Anne Berkenbosch • “You Would Be Lucky to Get this Employee to Work for You” – The Art of Providing References – Richard Press

• Questions?

Cross Country Check-Up: Recent Developments in Canadian Employment Law

10:00 a.m. - 10:35 a.m. • Ontario Update – Michael Richards • Manitoba, Saskatchewan, Alberta Update – Wendy-Anne Berkenbosch

• Quebec Update – Pablo Guzman • The North Update – Cynthia Levy

• Questions?

Refreshment Break

10:35 a.m. – 10:55 a.m. Refreshment Break

Individual Presentations - Session II

11:00 a.m. - 12:10 p.m. • Discrimination on the Basis of Family Status - What’s the Scoop? – Allen Soltan • Working outside the Employment Standards Act: Variances, Averaging Agreements and Exclusions – Michael Hamata • Criminal Record Checks: What You Can Do – Suzanne Kennedy • From Wildfires to Bird Flu: HR Emergency Preparedness – Pablo Guzman • Questions?

Lunch

12:10 p.m. - 1:30 p.m.

Luncheon Speakers

Jo-Anne Weiler & Prof. Joe Weiler

© Davis LLP 2014

FIRM INFORMATION

Firm Profile

Chambers Global: Guide to the World’s Leading Lawyers describes Davis as a firm that “maintains a profile as a lean outfit that punches above its weight.” The firm acts for both Canadian and international clients and is often involved in complex matters with an international dimension.

With more than 250 lawyers providing legal services across Canada and in Japan1, Davis LLP has well-known

and respected capabilities in core areas such as corporate and commercial law, M&A, securities & corporate finance, litigation, and labour and employment. The firm is also a leader in a number of niche markets, including intellectual property, life sciences, infrastructure development (particularly P3s — public/private partnerships), project finance, renewable energy, climate change law, natural resources, environmental law, banking and financial institutions (including banks, credit unions and other regulated financial institutions), and Japan and Japanese-related investments.

Davis LLP's reputation for excellence and ethical practice is recognized in Canada and internationally including:

The 2014 International Legal Alliance Summit recognized Davis LLP as a Canadian Rising Star for the second consecutive year.

Best Lawyers in Canada 2015 directory lists 56 of the firm's lawyers across 30 practice areas as leaders in their field.

Chambers Global 2014 ranks 15 of the firm's lawyers as leaders in their field, including Banking & Finance, Transportation (Aviation), Aboriginal, Employment & Labour, Corporate/M&A, and Projects: PPP & Infrastructure.

The Canadian Legal Lexpert Directory 2014 recognizes 33 of our partners and counsel as leading lawyers in various areas of practice

Martindale Hubbell peer review rankings have 12 of our lawyers rated as AV

® Preeminent™ (highest level of professional excellence)

and 53 as BV® Distinguished™ (a widely respected mark of

achievement).

The International Who's Who Legal 2013 identified eight partners as leading legal practitioners in six different areas of business law.

1 through our associated firm, Davis & Takahashi, in Tokyo.

© Davis LLP 2014

Office Locations

VANCOUVER Suite 2800 Park Place 666 Burrard Street Vancouver, BC Canada V6C 2Z7 T: 604.687.9444 F: 604.687.1612

TORONTO Suite 6000, 1 First Canadian Place P.O. Box 367 100 King Street West Toronto, ON Canada M5X 1E2 T: 416.365.3500 F: 416.365.7886

CALGARY Suite 1000 Livingston Place West 250 2nd Street SW, AB Canada T2P 0C1 T: 403.296.4470 F: 403.296.4474

MONTRÉAL Suite 1400, McGill College Tower 1501 McGill College Avenue Montréal, QC Canada H3A 3M8 T: 514.392.1991 F: 514.392.1999

EDMONTON Suite 1201 Scotia Tower 2 10060 Jasper Avenue Edmonton, AB Canada T5J 4E5 T: 780.426.5330 F: 780.428.1066

TOKYO ARK Mori Building, West Wing 13th Floor 1-12-32 Akasaka Minato-ku, Tokyo Japan 107-6013 T: 81.3.5251.5071 F: 81.3.5251.5072

WHITEHORSE Suite 201 The Taku Building 4109 4

th Avenue

Whitehorse, YT Canada Y1A 1H6 T: 867.393.5100 F: 867.667.2669

YELLOWKNIFE Suite 802, Northwest Tower, 5201 - 50th Avenue Yellowknife, NT Canada X1A 3S9 T: 867.669.8400 F: 867.669.8420

© Davis LLP 2014

Practice Areas

Aboriginal Law & First Nations Legal Issues

Asia-Pacific

o India

China & Southeast Asia

Aviation Law

Banking & Financial Services

Bankruptcy, Insolvency & Restructuring

Charities & Not-for-Profit

Competition & Antitrust

o Sponsorship, Promotional Contest and Gift Card Law

Conflict Management & Alternative Dispute Resolution

Construction Law

Corporate / Commercial and Mergers & Acquisitions

o Corporate Services

o Corporate Structuring

Education Law

Employment & Labour Law

o Occupational Health and Safety

Energy

o Electricity Regulations

o Renewable Energy

Environmental Law

o Climate Change

Family Law

Food & Beverage

Forestry Law

Franchise, Licensing & Distribution Law

Health Law

Human Rights

Immigration

Insurance Law

Intellectual Property

International Business Transactions

International Law & Trade

International Risk Management

Japan

Latin America

Life Sciences

Litigation & Dispute Resolution

o Products Liability Law

o Personal Injury Law

o Class Actions

o Commercial Litigation

o Legal Research

o Securities Litigation

Media, Entertainment & Communications

Mining Law

Municipal Law

Oil & Gas

Pensions & Benefits Law

Privacy & Access to Information

Professional Governance & Regulation

Project Finance, Infrastructure & Public Private Partnerships

Proxy Law

Public Affairs

Real Estate Law

Regulatory & Administrative Law

Securities & Corporate Finance

Taxation

Technology & Outsourcing

o Video Games & Interactive Entertainment Law

Transportation Law

Wills, Estates & Trusts

© Davis LLP 2014

AREAS OF EXPERTISE


The Davis LLP Employment & Labour Law Practice Group provides innovative strategic advice, dispute resolution and negotiation expertise to management and government in all aspects of business employment relations.

Our lawyers who practice in this area have diverse backgrounds in labour and employment and related areas such as employee benefits and pensions, executive compensation, governance, human rights and privacy.

Our clients include publicly-owned utilities, school boards and large associations, as well as employers at all levels of business and industry. We also act for municipal governments, native organizations and various government agencies.

Below are some examples of the services our group regularly provides:

Appear as advocates before labour boards and arbitrators, human rights tribunals and other statutory tribunals and the court in both federal and provincial jurisdictions

Advise on personnel reorganization programs, employment contracts. Employment termination procedures and wrongful dismissal litigation

Advise on employment and human resources policies

Represent clients in all aspects of human rights

Advise on compliance with Employment Standards, Workers' Compensation and other labour legislation

Negotiate and advise on administration of collective agreements

Assist with the negotiation, conciliation and arbitration of strikes and lockout situations

Provide a full range of services in employee benefits including representing pension advisors and acting on insurance and disability issues

Advise on privacy and confidential information issues relevant to employers

© Davis LLP 2014

Peter Archibald, Q.C.

PARTNER

VANCOUVER

Phone: 604.643.6302 Fax: 604.605.3548 Email: [email protected]

Biography

Peter Archibald practises industrial relations and employment law, as litigation counsel and a spokesperson in collective bargaining.

Davis LLP clients receive the benefit of Peter's 40 years' experience whether as their litigation counsel or their spokesperson at the bargaining table.

Peter has an extensive collective bargaining practice and has acted as chief spokesman for employers in over 155 sets of labour negotiations as well as acting as senior advisor to employers in scores of other labour negotiations.

He also has an extensive practice as a policy advisor to both public and private sector employers with regard to their human resources policies.

He has been a policy advisor to successive provincial governments on labour law reform and has acted for various interest groups in regard to labour law policy.

Peter joined Davis LLP as a partner in 2003 having previously practised with a major national law firm.

Notable Matters

Acted as counsel to SNC-Lavalin Inc. on William R. Bennett Bridge Project (also known as the Okanagan Lake Bridge Project), a DBFM project for a new bridge currently under construction alongside the existing bridge.

Recognition

Chambers Global (Employment & Labour) Band 3 (Canada), 2012

BV® Distinguished Peer Review Rated by Martindale-Hubbell

Chambers Global (Employment, Labour & Pensions: Labour for Employers), Band 2, 2011

Canadian Legal Lexpert Directory (Labour Relations: Management), Consistently Recommended, 2011

Best Lawyers in Canada (Labour & Employment Law), 2006-2014

Appointed Queen's Counsel, 1984

© Davis LLP 2014

Professional Associations & Activities

Member, Law Society of British Columbia

Member, Canadian Bar Association

Member, Human Resources Management Association

Education

LL.B., Dalhousie University, 1970

B.A., Mt. Allison University, 1967

Place and Year of Call

British Columbia, 1971

© Davis LLP 2014

Wendy-Anne Berkenbosch

PARTNER

EDMONTON


Biography

Wendy-Anne Berkenbosch is a partner at Davis LLP. As a member of the firm’s Employment and Labour Law Practice Group, Wendy-Anne advises employers on labour, employment, administrative and human rights law issues. She also has expertise working with regulated health professions in Alberta.

Wendy-Anne regularly assists clients and other lawyers by providing research and analysis and by drafting comprehensive opinions, oral arguments and written submissions for all levels of court in all areas of the law.

Wendy-Anne also practises in the area of environmental law. Her experience includes advising clients regarding potential environmental risks and liability, supporting the defence of environmental prosecutions and assisting in the application process for environmental regulatory approval.

Publications

"2014 Employment and Labour Law Conference Presentations - Toronto", Davis LLP Annual Employment & Labour Law Conference (May 2014)

"Have a Workplace Harassment Policy? Why It’s Not Enough", Davis LLP Employment & Labour Law Bulletin (March 2014)

"Alcohol and Drug Testing: Where Are We Now?" (November 2013)

"2013 Employment and Labour Law Conference Presentations - Edmonton", Davis LLP Annual Employment & Labour Conference (October 2013)

"2013 Employment and Labour Law Conference Presentations - Calgary", Davis LLP Annual Employment & Labour Conference (June 2013)

"2013 Employment and Labour Law Conference Presentations - Toronto", Davis LLP Annual Employment & Labour Conference (May 2013)

"Recent Developments and Limits on the Employer's Duty to Accommodate", Canadian Employment & Labour Conference 2012 - Montreal and Toronto (June 2012)

"I Know What You Did Last Summer: Employers and Workplace Surveillance" (October 2011)

"Practical Strategies for Legal Research" (June 2011)

"Discovery (Western)", Canadian Encyclopedic Digest (April 2011)

© Davis LLP 2014

"Appeal court rejects damages for stigma of dismissal: Merrill Lynch", The Lawyers Weekly (November 2010)

"Are We There Yet? The Duty to Accommodate and Meeting the Test for Undue Hardship" (November 2010)

"Alberta Court of Appeal Overturns $1.6 Million Award for Injury to Reputation and Goodwill", Davis LLP Employment & Labour Bulletin (September 2010)

"Cross Country Check Up - Alcohol and Drug Testing Update" (September 2010)

"2010 Canadian Employment & Labour Law Conference Handout - Toronto" (May 2010)

"Western Report - Alcohol and Drug Testing Update" (March 2009)

"The Duty of Fairness in the Investigative Stage of Administrative Proceedings" (January 2009)

"How Far is Too Far? Terminating and Accommodating Disabled Employees" (November 2008)

"Franchise Update: Canadian Legislation, Mandatory Mediation Clauses, Price Maintenance, and Other Topics", Davis LLP Franchise Connection (July 2007)


Member, Law Society of Alberta


Second Vice President, University of Alberta Alumni & Friends of the Faculty of Law Association

Speaking Engagements and Events

Davis LLP Annual Employment & Labour Law Conference Series, Toronto Employment & Labour Law Conference 2014 (May 2014)

Davis LLP Annual Employment & Labour Law Conference Series, Edmonton Employment & Labour Law Conference 2013 (October 2013)


Davis LLP Employment & Labour Law Conference Series, 2012 Western Canada Employment & Labour Law Conferences (October 2012)


Davis LLP Annual Employment & Labour Law Conference Series, Montréal Employment & Labour Law Conference 2012 (May 2012)

Davis LLP Employment & Labour Conference, Canadian Employment & Labour Conference 2011 - Calgary (October 2011)

© Davis LLP 2014

Davis LLP Employment & Labour Group Conference, Canadian Employment & Labour Conference 2011 - Edmonton (October 2011)

Edmonton Law Libraries Association, Headstart Legal Research Seminar for Graduating Law Students 2005-2011 (June 2011)

Davis LLP, Canadian Employment & Labour Conference 2011 - Toronto (May 2011)

Davis LLP, Canadian Employment & Labour Conference 2010 - Edmonton (November 2010)

InsideCounsel, National Labour Law Symposium 2010 (September 2010)

Davis LLP, Canadian Employment & Labour Law Conference 2010 - Toronto (May 2010)

Legal Education Society of Alberta Seminar, Legal Research (October 2008)


Education

LL.B (with Distinction), University of Alberta, 1999

B.A. (with Distinction), The King's University College, 1995


Alberta, 2000

© Davis LLP 2014

Maggie Campbell

ASSOCIATE

VANCOUVER


Biography

Maggie Campbell is an associate in the firm's Employment and Labour Law Group. She articled at Davis and joined the firm as an associate in 2007.

Maggie advises clients on all aspects of employment relations. She has represented clients at all levels of BC Courts, as well as administrative tribunals such as the Human Rights Tribunal and the Employment Standards Tribunal.

Recognition

Borden Ladner Gervais LLP Prize in Conflicts Law

John E. Sullivan Award in Constitutional Law

Publications

"Human Rights Tribunal Asks Complainant to Pay Respondent’s Legal Costs", Davis LLP Employment & Labour Bulletin (August 2014)

"Employment Standards Under Canada Labour Code Now in Effect", Davis LLP Employment & Labour Bulletin (April 2014)

"BC Human Rights Tribunal Makes Record Damages Award for Injury to Dignity in Discrimination Case", Davis LLP Employment & Labour Law Bulletin (March 2014)

"WorkSafeBC’s Bullying and Harassment Policies: Is Your Workplace in Compliance?", Davis LLP Employment & Labour Law Bulletin (February 2014)

"Facebook, Twitter, YouTube: Using Social Media in Recruiting and Managing Employees", Davis LLP Privacy Law Bulletin (November 2013)

"2013 Employment and Labour Law Conference Presentations - Vancouver", Davis LLP Annual Employment & Labour Conference (October 2013)


"Maternity and Parental Leave: Current Issues and Challenges", Davis LLP Employment & Labour Law Conference (October 2012)

© Davis LLP 2014

"What Constitutes Just Cause for Termination Today?" (January 2007)

"Double Dipping Case Law" (September 2006)

"Meeting the Duty to Accommodate Obligations following Keays v. Honda", Insight Conference on Advanced Human Resources Management (January 2006)


Member, Employment Law Section, Canadian Bar Association, B.C. Branch


Board Member, UBC Law Alumni Association (2008-present)


Davis LLP Annual Employment & Labour Law Conference Series, Vancouver Employment & Labour Law Conference 2013 (October 2013)


Continuing Legal Education Society of BC, Family Law Conference 2007 (January 2007)

Education

LL.B., University of British Columbia, 2006

B.A., English Literature, University of British Columbia, 2000



© Davis LLP 2014

Pablo Guzman

PARTNER

MONTRÉAL


Biography

Pablo Guzman is a partner in the Montréal office of Davis LLP. Pablo is a litigator and practises in the areas of commercial law, employment and labour law, franchise and distribution law and the enforcement of creditors' rights. He routinely counsels clients in the drafting, review, management and enforcement of contracts and security instruments in his areas of practice.

Pablo often provides strategic counsel to boards and C-level executives on complex litigation and compliance with business-related legislation, including Québec's Consumer Protection Act, the Charter of the French Language, the Civil Code of Québec, the Competition Act and privacy legislation. His litigation practice also includes acting as defence counsel in several competition law class proceedings pursuant to the Civil Code of Québec and the Competition Act.

He has appeared before the Québec, Superior and Appeal Courts and provincial, federal and international administrative and arbitration tribunals.

Pablo was born in El Salvador, Central America and moved to Canada in 1976.

He obtained a B.A. in Political Science at Université du Québec - Montréal in 1989, specializing in international relations.

He received his Bachelor of Laws degree from the Université de Montréal in 1992.

Biografía (en español) >>

Publications

"Understanding the New Temporary Foreign Worker Program", Canadian Franchise Association White Paper (September 2014)

"Paternity and Parental Leaves in Quebec: What Employers Should Know", Davis LLP Employment & Labour Law Bulletin (June 2014)

"2014 Employment and Labour Law Conference Presentations - Montréal", Davis LLP Annual Employment & Labour Law Conference (May 2014)


"Québec – Language Requirements: Court Rules to Keep Trade-mark Exception for Public Signs and Posters and Commercial Advertising", Davis LLP Corporate/Commercial and Mergers & Acquisitions Bulletin (April 2014)

© Davis LLP 2014



"Integrity In Public Contracts Act (Québec): More Public Contracts Subject to the Autorité Des Marchés Financiers' Prior Authorization Regime", Davis LLP Corporate / Commercial and Mergers & Acquisitions Bulletin (September 2013)

"Québec - Language Requirements: The Trademark Exception for Public Signs and Posters and Commercial Advertising", Davis LLP Corporate / Commercial and Mergers & Acquisitions Bulletin (September 2013)

"You Are What You Tweet: Perks and Perils of Social Media" (June 2013)


"2013 Employment and Labour Law Conference Presentations - Montréal", Davis LLP Annual Employment & Labour Conference (June 2013)


"Non-Compete Agreements: Handle with Care", Davis LLP Employment & Labour Bulletin (July 2012)

"Our Friend, Anton Piller (The Injunction)", Canadian Employment & Labour Conference 2012 - Montreal (June 2012)

"Franchising in Canada: A Guide for Franchisors and their Legal Counsel", Davis LLP Franchise Article (January 2012)

"Beyond the "Bare Minimum Route" with Long-Term Employees", Davis LLP Employment & Labour Bulletin (August 2011)

"Social Networking in the Workplace: How Business is Logging Into Facebook and Other Social Media", Davis LLP Employment & Labour Conference (November 2010)

"Quebec Hypothecs" (November 2010)

"Doing Business in Quebec: Substantial Increase in Fines for Breach of Language Laws", Davis LLP Quebec Matters Bulletin (November 2010)


"A Québec Expansion: Easier Than You Might Think", Canadian Franchise Association 2010 National Convention (May 2010)

"Franchise Update: Enforceability of Restrictive Covenants, Enforcing Arbitration Clauses, and Other Topics", Davis LLP Franchise Connection (July 2008)

"Franchise Update: Québec Law, Business Immigration for Franchisors, and Running Contests in Canada", Davis LLP Franchise Connection (April 2007)

© Davis LLP 2014


Member, Mexico-Canada Chamber of Commerce

Member, Canada-Chile Chamber of Commerce

Member, Lord Reading Society (an association of English speaking litigation attorneys)


Lexpert Professional Development Course, Information Privacy and Data Protection (November 2014)




Board of Trade of Metropolitan Montréal seminar, Japan: Driving Sectors and Development Strategies (June 2013)



2013 CFA National Convention, What's Up with Quebec? (April 2013)




Davis LLP / Baker Donelson Presentation, Spring 2012 IFA Franchise Business Network Video Conference (April 2012)

Davis LLP, Canadian Employment & Labour Conference 2011 - Montréal (May 2011)

Davis LLP, Canadian Employment & Labour Conference 2010 - Calgary (November 2010)

Federated Press Conference 2010 (November 2010)

InsideCounsel, National Labour Law Symposium 2010 (September 2010)


© Davis LLP 2014

Canadian Franchise Association National Convention (May 2010)

National Association of Credit Management (March 2010)

Education

LL.B., Université de Montréal, 1992

B.A., Université du Québec à Montréal, 1989


Québec, 1994

© Davis LLP 2014

Michael Hamata

ASSOCIATE

VANCOUVER


Biography

Mike Hamata is an associate in the Vancouver office of Davis LLP, where he practises general civil litigation. His practice focuses on advocacy in the Employment and Labour Law context.

Mike represents clients and assists senior counsel on a wide range of workplace issues and general civil litigation matters.

He has appeared before the British Columbia Provincial Court, the Supreme Court of British Columbia, the British Columbia Labour Relations Board, and various administrative tribunals.

In 2011, Mike was a judicial law clerk to five Justices of the Supreme Court of British Columbia. Mike coaches the UBC moot team in the British Columbia Law Schools Moot.

Publications

"After the Collective Agreement Expires: Unilateral Changes in Conditions of Employment", Davis LLP Employment & Labour Law Bulletin (June 2014)

"Most Equity Partners in Partnerships are not Employees", Davis LLP Employment & Labour Law Bulletin (June 2014)

"Doing Business in British Columbia 2013" (November 2013)

"The Hostile Work Environment: An Expansion of Employer Liability? (Or, How Important is it to be Nice?)" (October 2013)


"A Sobering Decision for Random Alcohol Testing in the Workplace", Davis LLP Employment & Labour Law Bulletin (June 2013)

"Leave for Appeal to the SCC Granted in McCormick v. Fasken Martineau DuMoulin LLP", Davis LLP Employment & Labour Law Bulletin (March 2013)

"Privacy of Employee Records - Supreme Court of Canada issues decision in R v. Cole", Davis LLP Employment and Labour Law Bulletin (October 2012)

© Davis LLP 2014



Member, CBABC Sections (Labour, Employment, and Litigation)



Community Involvement

Member in Training, Coquitlam Search and Rescue

Vancouver Executive Committee, Special Olympics BC, 2011-2012

Shift Leader, Downtown Legal Services, 2009-2011

Research Student, Canadian Civil Liberties Association, 2009-2010

Education

J.D., University of Toronto, 2011

B.Comm. (Honours), Queen's University, 2007



© Davis LLP 2014

Suzanne Kennedy

ASSOCIATE COUNSEL

VANCOUVER


Biography

Suzanne Kennedy practises in the areas of corporate commercial law with an emphasis on health law, privacy, administrative law and regulatory matters.

Suzanne has practised law in British Columbia since 1997, and focuses her practice on three areas.

Health Law

Suzanne, as one of the primary members of Davis's Health Law Practice Group, acts for various health care bodies and government agencies in British Columbia, including acting as counsel for provincial health authorities, hospitals, community health programs or organizations, private care facilities, and health care professionals.

She has also represented both public and private hospitals and care facilities as well as professional regulatory bodies within the health care sector. She represents her health law clients in all matters relating to health care, including administrative law matters, privacy, regulatory issues, corporate governance, contractual negotiation and dispute resolution.

Privacy

Suzanne also advises firm clients in all manner of issues that arise under British Columbia's burgeoning access to information and privacy laws.

She has been involved in advising and representing clients in the full range of issues that arise in the information management area, including application of the Freedom of Information and Protection of Privacy Act (for the firm's public sector and health clients) and the Personal Information Protection Act (for the firm's private sector clients).

Most recently, she has acted for large institutional clients on managing the effects of inadvertent breaches of privacy, and preventive steps for avoiding such breaches.

She has also recently authored an information manual for health authorities in British Columbia in responding to access requests under the Freedom of Information and Protection of Privacy Act.

Corporate Commercial, Banking and Regulatory Compliance

Suzanne also has a strong focus on corporate commercial work, which includes a background in advising firm clients on a full range of corporate commercial matters as well as related legal compliance issues such as statutory interpretation, administrative law, managing investigations and compliance, employment and human rights.

© Davis LLP 2014

Most recently, Suzanne's practice has expanded to advising the firm's financial institution clients in such matters.

Notable Matters

Advised the First Nations Health Council and First Nations Health Society in the preparation of a landmark legal agreement pertaining to management of health services for First Nations (October 2011)

Publications

"British Columbia Legislative Update in Health Law", Davis LLP Health Law Bulletin (June 2012)

"How Tech Firms Must Govern Brain Power", The Lawyers Weekly (June 2012)

"Health Law Update: Constitutional Law News, Procurement Law News, and Privacy Law News", Davis LLP Health Law Bulletin (March 2012)

"British Columbia Health Law Legislative Update", Davis LLP Health Law Bulletin (May 2008)

"Health Law Update: Case Law, Legislative Changes, and Health Related Privacy Orders", Davis LLP Health Law Bulletin (July 2007)

"Bill 73 - Freedom of Information and Protection of Privacy Amendment Act", Davis LLP Health Law Bulletin (November 2004)

"Developments in Class Proceedings and Environmental Law", Davis LLP Paper (January 2002)


Former Chair, Canadian Bar Association Health Law Subsection (BC Branch)

Former Executive Member Canadian Bar Association - National Health Law Section


Member, Canadian Bar Association (Information and Privacy and Administrative Law)


Girl Guides of Canada, 2011

Member, UBC Clinical Research Ethics Board, 2010

BC Cancer Agency Research Ethics Board, 2008

Children's Wish Foundation - BC Board, 2005

YWCA Women of Distinction Award Program, 2002-2005

Canadian Breast Cancer Foundation Run for the Cure, 2000-2003

© Davis LLP 2014

Education

LL.B., Osgoode Hall Law School, York University, 1996

B.A., English and History, University of British Columbia, 1993

Mediation and Advanced Mediation Courses (Center for Mediation in Law)



© Davis LLP 2014

Selina Koonar

ASSOCIATE

VANCOUVER


Biography

Selina Koonar is an associate in the Vancouver office of Davis LLP. She is licensed to practice law in both British Columbia and Washington State.

Selina’s cross-border practice focuses on business immigration where she represents clients in obtaining work permits, NAFTA-based applications (such as TN status), intercompany transferee applications, Provincial Nominee Program (PNP) applications, labour market opinions, and business investor cases for Canada or the United States. She also assists clients with citizenship assessments and expatriation. Selina also provides advice related to cross-border estate planning for clients subject to the laws in Canada and the United States.

Selina’s privacy practice involves acting for clients on a range of privacy, freedom of information, and data protection matters, including privacy policy review and development. She provides strategic advice to clients to ensure all activities comply with relevant domestic and international privacy and data protection laws. She has extensive experience in making or responding to Access to Information requests, including administrative proceedings at the Information and Privacy Commissioner.

Actively involved in B.C.’s and Washington’s legal communities, she currently sits as an Executive Board Member of the Women Lawyers Forum, Canadian Bar Association, BC Branch. She was a past Executive Board Member of the Washington State Bar Association’s International Practice Section. She is also an active member of the American Bar Association’s Section of International Law. For years, Selina has regularly participated in legal clinics in B.C. and Washington.

Publications

"Doing Business in Ontario 2013" (November 2013)

"Doing Business in Alberta 2013" (November 2013)


"Privacy Concerns Continue over Border Security Television Show", Davis LLP Privacy Law Bulletin (November 2013)


"New Resolution from the Brazilian National Immigration Council Changes the 90-day Technical Visa Applications", Davis LLP International Law & Trade Bulletin (May 2013)

"Growing Concerns Over Online Privacy Lead to Class Action Lawsuits Against Instagram, Facebook and Google", Davis LLP Privacy Law Bulletin (March 2013)

© Davis LLP 2014

"EU Data Regulators Take Aim at Google", Davis LLP Privacy Law Bulletin (March 2013)


Executive Member, CBA-BC Women Lawyer Forum, 2013 - present

Past Executive Member, WBSA International Practice Section, 2011-2012, 2012-2012

Member, ABA Section of International Law, Fall Conference Planning Committee 2011-2013

Member, CBA Sections: Privacy, Business, and International Law

Member, BC Privacy Professionals Association

Member, ABA Sections: Business Law, International Law, Young Lawyers

Committee Member, CBA-BC Immigration Section

Member, American Society of Immigration Lawyers, Canadian Chapter & WA Chapter


CBABC Women Lawyers Forum Panel Discussion, One Work Place, Several Generations (June 2014)

Cross-Border in the Cross Hairs - FATCA and Renouncing US Citizenship (April 2014)

BC Privacy Professionals Network Forum Event, Employee Monitoring via GPS Tracking (December 2013)


Education

J.D., Florida Coastal School of Law, 2007

B.A., University of British Columbia, 2002


Washington, 2007


© Davis LLP 2014

Cynthia Levy

ASSOCIATE

YELLOWKNIFE


Biography

Cynthia Levy joined the Yellowknife office of Davis LLP in 1999 following employment in the private practice of law and in legal education. She practises corporate/commercial law, commercial real estate and civil litigation with particular emphasis on employment and labour law and municipal law. Cynthia is the managing lawyer of the Yellowknife office of Davis LLP.

Cynthia regularly provides advice on employment standards and agreements, drafts employment and termination agreements, and defends wrongful dismissal and constructive dismissal litigation on behalf of various municipal governments, associations and boards. Her labour law practice concentrates on the negotiation and interpretation of collective agreements on behalf of employers throughout the Northwest Territories and Nunavut.

Cynthia represents numerous municipal governments throughout the Northwest Territories and Nunavut. She provides general advice on various matters of interest to municipalities, including council procedures, labour and employment, municipal contracts, land issues, and preparation and interpretation of bylaws.

Cynthia also practices in the areas of corporate/commercial law, commercial real estate, and mining law.

Cynthia obtained a Bachelor of Laws degree from Dalhousie University in 1989 and was admitted to the bar in Nova Scotia in 1990. She articled and practised law in Halifax until 1996, gaining extensive experience in legal research and writing, civil and commercial litigation, corporate/commercial law and real estate law.

From 1996 to 1998, Cynthia was employed as the instructor of legal studies and paralegal programs offered by several private career colleges in Newfoundland and Nova Scotia. In these positions, she delivered lectures and practical instruction in substantive law, legal research and writing, title searching, and supporting courses. She was also responsible for the development of curriculum and evaluation of student progress.

Notable Matters

Advised various management investors in connection with the formation of the new limited partnership, credit facility and acquisition in addition to other banking matters (April 2010)

Prepared all documents relating to the sale of mineral interests in the Northwest Territories and Nunavut.

Recognition

Recipient, Maritime Law Book Company Prize in Professional Responsibility, 1989

Recipient, Honourable Alistair Fraser Scholarship, 1987

Recipient, Queen's University Tricolor Scholarship, 1984

© Davis LLP 2014

Publications



Member, Law Society of the Northwest Territories

Member, Law Society of Nunavut

Member, Admissions Committee, Law Society of the Northwest Territories

Member, Legal Ethics Committee, Law Society of the Northwest Territories

Former chair, Labour & Employment Law Section, NWT Branch, Canadian Bar Association




Director, Yellowknife Guild of Arts and Crafts, 2002-2013

Education

LL.B., Dalhousie University, 1989


Nunavut, 2000

Northwest Territories, 1999

Nova Scotia, 1990

© Davis LLP 2014

Larry Page

COUNSEL

VANCOUVER


Biography

Larry Page is counsel in the Vancouver office of Davis LLP and a member of the firm’s Employment & Labour Law Group. He advises clients on all matters in respect of labour relations planning and strategy, and has practised labour law in B.C. for over 35 years.

Larry has extensive experience in all aspects of labour relations, including Labour Relations Board hearings, arbitrations, court hearings, the negotiation and interpretation of collective agreements, and labour relations planning in a wide range of industries.

Larry provides ongoing labour relations advice to employers in the public and private sectors, and has, as clients, a number of major national and multinational corporations in manufacturing, transportation, entertainment, communications, and forestry, as well as municipal governments.

Recognition

BV® Distinguished™ Peer Review Rated by Martindale Hubbell

Publications

"After the Collective Agreement Expires: Unilateral Changes in Conditions of Employment", Davis LLP Employment & Labour Law Bulletin (June 2014)

"Ontario Human Rights Tribunal Awards Significant Damages Against Employer for Failure to Investigate Racial Discrimination Claims", Davis LLP Employment & Labour Law Bulletin (May 2014)

"Teck Continues Random Drug and Alcohol Testing - For Now", Davis LLP Employment & Labour Bulletin (April 2014)

"Taking a Page from the Globe and Mail: How to Enforce Confidentiality of Settlements", Davis LLP Employment & Labour Law Bulletin (March 2014)

"Defamation Claim Over Sexual Harassment Complaint at Work: How Employers Can Minimize Liability", Davis LLP Employment & Labour Law Bulletin (February 2014)

"Can an Employee Consent to Sexual Harassment at Work?", Davis LLP Employment & Labour Law Bulletin (January 2014)

"Facebook, Twitter, YouTube: Using Social Media in Recruiting and Managing Employees", Davis LLP Privacy Law Bulletin (November 2013)

© Davis LLP 2014


"Enforcement of Privacy Policy in Steel v. Coast Capital Savings Credit Union", Davis LLP Privacy Law Bulletin (June 2013)


"Recent Developments in Random Drug and Alcohol Testing in Canada", Davis LLP Privacy Law Bulletin (March 2013)

"What Counts as Work in the Blackberry Era? Navigating the Pitfalls of Hours of Work and Overtime Claims", Davis LLP Employment & Labour Law Conference (October 2012)



Member, Labour Law Section, Canadian Bar Association, B.C. Branch

Member, Human Resources Management Association of British Columbia





Education

LL.B., University of British Columbia, 1970

B.A., McGill University, 1967



© Davis LLP 2014

Richard Press

PARTNER

VANCOUVER


Biography

Richard Press is a partner in the firm's Employment and Labour Law Group. His practice focuses both on advocacy and strategic planning with respect to employment and labour matters, as well as related administrative tribunal work, such as human rights, health and safety, workers compensation and employment standards.

As an advocate, Richard has appeared before provincially and federally appointed arbitrators, the British Columbia courts, the provincial and federal labour boards, and various tribunals.

He is a strong proponent of preventative legal measures. He advises clients in that regard on employment and consultant agreements, employee policies and procedures (governing, among other matters, overtime compensation, discrimination, bullying and harassment, internet and social media, alcohol and drug use, and health and safety), proprietary asset and confidential information protection, compensation and benefit packages, and collective bargaining.

Notable Matters

Acted for Kids & Company before the Employment Standards Tribunal on an appeal by a former employee that the company had made misrepresentations during the hiring process. The appeal was dismissed. (July 2012)

Acted for Canfor Corporation as it completed its acquisition of the Tembec Industries Ltd. southern British Columbia interior wood products assets consisting of the Elko and Canal Flats sawmills and approximately 1.1 million cubic metres of combined Crown, private land and contract annual allowable cut (March 2012)

Acted for Valley First Credit Union, a Division of First West Credit Union, before the Labour Relations Board on the dismissal of a union's application for certification. (February 2012)

Acted for the Alma Mater Society of UBC before the Labour Relations Board on a union's proposed consolidation of two bargaining units. (January 2012)

Acted for Canfor Corporation in an agreement with Montreal-based Tembec Industries Inc. to purchase all of Tembec's British-Columbia solid wood assets consisting of two sawmills located in Elko and Canal Flats and associated forest tenures for $60 million, including working capital. (November 2011)

Acted for the British Columbia Automobile Association before the Labour Relations Board on a reconsideration decision relating to partial decertification of multi-location bargaining units. (October 2011)

Acted for Canfor Pulp Limited Partnership on a Human Rights Tribunal matter. (March 2011)

Successful defence of union certification application and unfair labour practice complaint (September 2010)

© Davis LLP 2014

Structuring of and advice on group termination (transportation sector) (2010) (August 2010)

Human rights disability discrimination complaint (2010) (August 2010)

Successful defence of union certification application and unfair labour practice (manufacturing sector) (2010) (July 2010)

Structuring of and advice on group termination (mining sector) (2010) (June 2010)

Appeal before WCAT reversing approx. $600,000 assessment levied on client (2009) (December 2009)

Successful union decertification application and defence of unfair labour practice (August 2009)

Successful defence of human rights age discrimination complaint (2009) (July 2009)

Successful defence of health and safety WorkSafeBC order involving prime contractor liability (2009) (March 2009)

Assisted with curtailment, restructuring and downsizing to address negative global economy (2009) (January 2009)

Publications

"WorkSafeBC Review Points to Enforcement Changes and Tougher Penalties", Davis LLP Employment & Labour Bulletin (July 2014)

"The Verbal and Written Reference: Or, 'You Would be Lucky to Get This Employee to Work for You!'" (July 2014)

"Most Equity Partners in Partnerships are not Employees", Davis LLP Employment & Labour Law Bulletin (June 2014)

"Can a Teacher Refuse to Work with Children?", Davis LLP Employment & Labour Law Bulletin (May 2014)


"Current Issues in Employment Law" (January 2014)

"Changes Affecting Terms of Employment" (January 2014)


"The Hostile Work Environment: An Expansion of Employer Liability? (Or, How Important is it to be Nice?)" (October 2013)


"A Sobering Decision for Random Alcohol Testing in the Workplace", Davis LLP Employment & Labour Law Bulletin (June 2013)

"Compliance Checklist for Employment Matters in British Columbia" (April 2013)

© Davis LLP 2014

"British Columbia Employment Law Overview" (April 2013)

"Leave for Appeal to the SCC Granted in McCormick v. Fasken Martineau DuMoulin LLP", Davis LLP Employment & Labour Law Bulletin (March 2013)


"Mental Health as a Safety Issue: The New WorkSafe BC Regime", Davis LLP Employment & Labour Conference (October 2012)

"Employing Contractors and Contracting Employees: Sorting Out Tax and Legal Issues", Seminar for the Institute of Chartered Accountants of British Columbia (November 2011)

"Termination Clauses in Employment Agreements: I Agreed to What?", Canadian Employment & Labour Conference 2011 - Edmonton / Vancouver (October 2011)

"Changing Employment Terms - Developments in Constructive Dismissal", Continuing Legal Education Society of British Columbia (May 2011)


"Alberta Employment Update - Fall 2009", Davis LLP Employment & Labour Bulletin (October 2009)

"Employment in Tough Times - Interplay Between Employment and Insolvency", Practice Made Perfect: Continuing Legal Education Society of British Columbia (May 2009)


Member, Canadian Bar Association (Employment and Labour Subsections)


Past contributing member to the Employment Standards Tribunal Digests




ICABC Professional Development Program 2011, Employing Contractors and Contracting Employees: Sorting out the Tax and Legal Issues (November 2011)


Davis LLP, Canadian Employment & Labour Conference 2011 - Vancouver (October 2011)

InsideCounsel Conference, National Labor Law Symposium (October 2011)

© Davis LLP 2014

Education

LL.B., University of Toronto, 1993

B.Sc., McGill University, 1990



© Davis LLP 2014

Michael S. Richards

PARTNER

TORONTO


Biography

Michael S. Richards is a partner specializing in employment and labour law in Toronto. Michael was called to the bar in both Ontario and British Columbia and has represented clients before various levels of courts in both provinces, before administrative tribunals, at arbitrations, in mediation and at other negotiations, including collective bargaining.

After graduating from the University of Toronto, Michael returned to British Columbia where he was the law clerk to Madam Justice Jo-Ann Prowse of the British Columbia Court of Appeal. Michael articled in the Vancouver office of Davis LLP and was called to the British Columbia Bar before transferring to the Toronto office where he has practised since early 2001.

Michael's practice in employment and labour law includes providing advice to both national and international organizations on a daily basis and representing clients with respect to various labour and employment issues including:

The recruitment, hiring and termination of employees.

Providing advice with respect to group terminations and business closures.

The successful and cost effective defence of wrongful dismissal claims, grievance and human right complaints.

The preparation of employment, consulting and independent contractor agreements including the provision of advice with respect to the enforceability of non-solicitation, non-competition and confidentiality agreements.

The negotiation and interpretation of collective agreements.

The interpretation and application of employment standards legislation, workplace safety and insurance legislation, occupational health and safety, and human rights legislation.

Finally, Michael's practice also includes privacy law and advising businesses in Ontario with respect to their obligations under privacy legislation, including performing privacy audits and assisting clients in the development of privacy policies compliant with applicable legislation.

Michael has been with Davis LLP since 1998.

Notable Matters

Represented Visualsonics, a Toronto-based company with high-frequency ultrasound technology, in its sale to SonoSite for $80 million. (June 2010)

© Davis LLP 2014

Represented Harman International Industries, Inc., a large U.S.-based international, publicly-traded company in the acquisition of QNX Software Systems Ltd. (November 2004)

Represented a Canadian Olympics candidate in a dispute over selection to the 2001 Olympics team

Developing and implementing strategies for the retention of key employees in several acquisitions of knowledge/skill-based enterprises in the high-tech and financial services sectors

Acting for a national clothing retailer and for several U.S. and European companies in the development and implementation of employment policy and procedure manuals

Reviewing and preparing employment contracts for senior executives and other employees in the context of various acquisitions and positions of businesses

Recognition

Lexpert Rising Stars: Leading Lawyers Under 40 in Canada, 2013

Lexpert's Litigation Lawyers to Watch, 2011

Publications

"Where is the Line? Extra-Provincial Payroll May Affect Ontario Severance Pay", Davis LLP Employment & Labour Law Bulletin (September 2014)

"Where Is the Fairness? Recent Developments and Cause for Concern at the Human Rights Tribunal" (June 2014)

"2014 Employment and Labour Law Conference Presentations - Montréal", Davis LLP Annual Employment & Labour Law Conference (May 2014)


"Are You “Frustrated”? Good News for Employers from the Human Rights Tribunal of Ontario", Davis LLP Employment & Labour Law Bulletin (January 2014)

"Are Ontario Employees Entitled to Benefits Coverage After the Age of 65?", Davis LLP Employment & Labour Law Bulletin (December 2013)

"The Supreme Court of Canada Finds That Employee Pension Payments Should Not Reduce Damages for Wrongful Dismissal", Davis LLP Employment & Labour Law Bulletin (December 2013)

"Gone but Not Forgotten?: Navigating the Legal Landscape of Statutory Leaves of Absence" (June 2013)


"2013 Employment and Labour Law Conference Presentations - Montréal", Davis LLP Annual Employment & Labour Conference (June 2013)


© Davis LLP 2014

"An Ounce of Prevention: Effectively Managing the Employment Relationship from the Beginning", Canadian Employment & Labour Conference 2012 - Montreal and Toronto (May 2012)


"Understanding Cloud Computing", Davis LLP Litigation Breakfast Seminar Materials (November 2011)

"Cross-Country Checkup - Ontario (Edmonton)" (October 2011)

"The Integrated Accessibility Regulation", Davis LLP Employment & Labour Alert (September 2011)

"Workplace Incident Reporting Obligations: Broader Than They May Appear", Davis LLP Employment & Labour Alert (September 2011)


"Significant New Employer Obligations Respecting Workplace Violence and Harassment", Davis LLP Employment & Labour Alert (January 2010)

"Cell Phones, Texting and Driving: Is Your Workplace Ready for the New Ban?", Davis LLP Employment & Labour Alert (September 2009)

"Downsizing and Restructuring Employment Strategies in Uncertain Times", Davis LLP Employment & Labour Bulletin (May 2009)

"Understanding Top Legal Issues in International Franchising", Franchising World (March 2009)



Member, Law Society of Upper Canada


Member, Ontario Bar Association

Member, British Columbia Bar Association

Member, Advocates Society


Lexpert Professional Development Course, Information Privacy and Data Protection (November 2014)


Davis LLP Client Seminar Series, Workplace Investigations and Union Avoidance (January 2014)

Insight Conference, Internal Investigations Forum (June 2013)

© Davis LLP 2014



21st Annual OARTY Conference, Labour Standards (June 2012)



Davis LLP Litigation Breakfast Seminar, Understanding Cloud Computing (November 2011)


InsideCounsel Conference, National Labor Law Symposium (October 2011)

Davis LLP, Canadian Employment & Labour Conference 2011 - Montréal (May 2011)




Mike is actively committed to the arts, providing pro-bono advice to not-for-profit arts organizations. In addition, Mike has served on the board of directors of Danny Grossman Dance Company since early 2004 and was elected chair in 2006. Mike's involvement with the company comes at a critical time as the company seeks to preserve the work of its namesake, both legally and practically, to ensure preservation of his art.

Education

LL.B., University of Toronto, 1999

B.Comm., (Honours), The University of British Columbia, 1996


Ontario, 2001


© Davis LLP 2014

Allen Soltan

PARTNER

VANCOUVER


Biography

With three decades of experience with Davis, Allen has an extensive practice in litigation and dispute resolution, focussing on professional governance, employment and labour law, human rights, and education.

Allen is a Director of the Governor General’s Canadian Leadership Conference and a member of the Advisory Board of the UBC Sauder School of Business.

Selected Experience

Administrative and Public Law

BCIT (Student Association) v. BCIT, [1999] BCJ No. 554 (BCSC)

BCIT (Student Association v. BCIT, 1999 BCCA 766

BCIT (Student Association) v. BCIT, 2000 BCCA 62

BCIT (Student Association) v. BCIT, 2000 BCCA 496, 192 D.L.R. (4th) 122, leave to appeal to SCC dismissed [2000] S.C.C.A. 564 (April 20, 2001)

BCIT (Student Association) v. BCIT, 2000 BCCA 684

Randhawa v. Pepsi Bottling Group (Canada) Co., 2002 BCSC 677


Randhawa v. Pepsi Bottling Group (Canada) Co., 2006 BCCA 273

Royal Oak College v. District of Burnaby (15 September 1992), Vancouver A922835 (BCSC)

Royal Oak College v. District of Burnaby (3 December 1992), Vancouver A922835 (BCSC)

Royal Oak College v. District of Burnaby (29 January 1993), Vancouver A922835 (BCCA)

Royal Oak College v. Burnaby (District) (1993), 14 M.P.L.R. (2d) 137 (BCSC)

Commercial Litigation

Anmore Development Corporation v. The Village of Anmore et al. (23 June 1994), Vancouver C913609 (BCSC)

Canadian Warranty Inc. et al. v. Sony of Canada Ltd. et al. (21 August 1991), Vancouver C911197 (BCSC)

© Davis LLP 2014

Corporation of the Township of Langley v. Sikh Missionary Association of Canada (22 December 1992), Vancouver A924509 (BCSC)

Crestbrook Forest Industries Ltd. et al. v. Consumers Glass Company Ltd. et al. (19 September 1984), Vancouver CA002870 and CA002871 (BCCA)

Inrig v. Her Majesty the Queen, 2005 TCC 687

No. 35 Great Projects Ltd. v. Federated Co-operatives (20 July 1992), Vancouver CA014722 (BCCA)

Pax Management Ltd. et al. v. CIBC et al., [1986] BCJ No. 1719 (BCSC)

Pax Management Ltd. et al. v. CIBC (1987), 14 B.C.L.R. (2d) 257 (CA)

Pollard v. Vancouver Stock Exchange et al., 1999 CanLII 5265 (BCSC)

Sammartino v. Hiebert (1988), 21 B.C.L.R. (2d) 251, 1988 CanLII 3069 (BCSC)

Employment

Allan – and – Outside Employees’ Association (The Pepsi Bottling Group (Canada) Co.), B.C.L.R.B. No. 108/2000, 2000 CLB 14008, CanLII 27503 (B.C.L.R.B.)

Allan – and – Outside Employees’ Association (The Pepsi Bottling Group (Canada) Co.) (8 May 2001), (letter decision)

Leeder v. Fraser Valley Mushroom Growers’ Co-operative, [1988] BCJ No. 2639 (BCSC)

Marshall v. Artek Group Ltd. (1992), 44 C.C.E.L. 152 (BCSC)

McDonald v. Toby Canada (8 November 1990), Vancouver C906569 (BCSC)

McKendrick v. Open Learning Agency (1997), 33 C.C.E.L. (2d) 48 (BCSC)

Mitchell v. Paxton Forest Products Inc., 2001 BCSC 1802

Mitchell v. Paxton Forest Products Inc., 2002 BCCA 532

Paquette v. Open Learning Agency, 2000 BCSC 1680

Ramnarine v. Vancouver General Hospital (9 February 1987), Vancouver C861306 (BCSC)



Randhawa v. Pepsi Bottling Group (Canada) Co., 2006 BCCA 273

Stafford v. British Columbia Chicken Marketing Board, 1998 CanLII 3973 (BCSC)

Labour Relations

Re Andromeda Productions Ltd. – and – International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 891 (2001), 94 L.A.C. (4th) 405, 2001 CLB 11893 (McPhillips)

© Davis LLP 2014

Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) – and – International Union of Operating Engineers, Local 959, [1993] B.C.D.L.A. 47-202, 1992 CLB 13590 (Albertini)

Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) – and – Cariboo-Chilcotin Teachers’ Association (1995), 39 C.L.A.S. 485, 1995 CLB 13398, [1995] B.C.D.L.A. 85-20 (Glass)

Re School District No. 27 (Cariboo-Chilcotin) – and – International Union of Operating Engineers, Local 959 (McIvor Grievance), 1997 CLB 13257, [1998] B.C.D.L.A. 500.45.60.70-02, 50 C.L.A.S. 278 (Hope)

Re School District No. 27 (Cariboo-Chilcotin) – and – Cariboo-Chilcotin Teachers’ Association – and – BC Teachers’ Federation (Basran Grievance), 1999 CLB 15281 (Germaine)

Re School District No. 27 (Cariboo-Chilcotin) – and – British Columbia Teachers’ Federation, [2000] B.C.D.L.A. 500.09.30.00-07, 1999 CLB 13546, 58 C.L.A.S. 403 (Dorsey)

Re School District No. 27 (Cariboo-Chilcotin) – and – British Columbia Teachers’ Federation (Teacherage Rental Grievance), 65 C.L.A.S. 195, 2001 CLB 13034 (Hope)

Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) – and – International Union of Operating Engineers Local 959 (Watt & MacKay Grievance) [2005] B.C.D.L.A. 500.15-40.60-02, 79 C.L.A.S. 456, 2004 CLB 13640 (Hope)

Re School District No. 33 (Chilliwack) – and – Chilliwack Teachers’ Association, 1997 CLB 13259, 49 C.L.A.S. 227 (Hope)

Board of School Trustees of School District No. 46 (Sunshine Coast) – and – Sunshine Coast Teachers’ Association (25 November 1992), Vancouver CA015904 (BCCA)

Board of School Trustees of School District No. 46 (Sunshine Coast) – and – Canadian Union of Public Employees, Local 801 (23 June 1993), (Diebolt, Page, Schneider)

Board of School Trustees of School District No. 46 (Sunshine Coast) and Sunshine Coast Teachers’ Association, [1993] B.C.L.R.B. 30-07, 93 CLLC 16,047, 93 CLB 15228

Board of School Trustees of School District No. 46 (Sunshine Coast) and Sunshine Coast Teachers’ Association (1994), 26 C.L.R.B.R. (2d) 69, 1994 CLB 15750, B.C.L.R.B. No. B389/94

Board of School Trustees of School District No. 46 (Sunshine Coast) v. Sunshine Coast Teachers’ Association (1996), 35 C.L.R.B.R. (2d) 134 (BCSC)

Board of School Trustees of District No. 46 (Sunshine Coast) v. Sunshine Coast Teachers’ Association (1997), 36 B.C.L.R. (3d) 237 (CA), leave to appeal to SCC dismissed, [1998] 1 S.C.R. vi (note)

Re School District No. 46 (Sunshine Coast) – and – Canadian Union of Public Employees, Local 801 (Trigg Grievance), 1998 CLB 14664 (McPhillips)

Board of School Trustees of School District No. 46 (Sunshine Coast) – and – Canadian Union of Public Employees, Local 801 (Blackett Grievance) (11 February 1998), (Diebolt)

Re School District No. 73 (Kamloops/Thompson) – and – Canadian Union of Public Employees, Local 3500 (Ault) (2006), 156 L.A.C. (4th) 171, 2006 CLB 13029 (Dorsey)

Re British Columbia Principals’ & Vice-Principals’ Association – and – British Columbia Teachers’ Federation (2001), 65 C.L.A.S. 195, 2001 CLB 13034 (Hope)

© Davis LLP 2014

British Columbia Principals’ & Vice-Principals’ Association – and – British Columbia Teachers’ Federation, [2003] B.C.D.L.A. No. 500.27.60.60-02, 2003 CLB 12667, 73 C.L.A.S. 417 (Dorsey)

British Columbia Principals’ & Vice-Principals’ Association – and – British Columbia Public School Employers’ Association (Severing Grievance) No. 2, (2003), 73 C.L.A.S. 417, 2003 CLB 12667 (Dorsey)

British Columbia Principals’ & Vice-Principals’ Association and British Columbia Public School Employers’ Association (Severing Grievance) No. 3, 2003 CLB 14957 (Dorsey)

British Columbia Principals’ & Vice-Principals Association et al. – and – British Columbia Teachers’ Association (D.V. Grievance), B.C.L.R.B. No. B322/2003

British Columbia Principals’ & Vice-Principals’ Association v. British Columbia Public School Employers’ Association et al., 2003 CanLII 62739 (B.C.L.R.B.)

British Columbia Principals’ & Vice-Principals’ Association and British Columbia Public School Employers’ Association, 2003 CanLII 62739, [2004] B.C.L.R.B. No. 515.45.65.70-01

British Columbia Principals’ & Vice-Principals’ Association and British Columbia Public School Employers’ Association (Severing Grievance) No. 2, 2005 BCCA 118, (2005), 40 B.C.L.R. (4th) 19 (CA)

British Columbia Public School Employers’ Association/School District No. 42 (Maple Ridge) – and – British Columbia Teachers’ Federation (Vieira Grievance) (11 October 2002), (Gordon)

British Columbia Public School Employers’ Association/School District No. 42 (Maple Ridge) – and – British Columbia Teachers’ Federation (Vieira Grievance) (2 September 2003), (letter decision) (Gordon)

British Columbia Teachers’ Federation et al. – and – BC Public School Employers’ Association et al. (Board Initiated Transfer Grievance), 58 C.L.A.S. 403, 1999 CLB 13546 (Dorsey)

Carpentry Workers’ Benefit Plan of BC – and – Canadian Office & Professional Employees Union, Local 15 (Bob Grievance) (15 May 2008), (supplementary preliminary awards 26 October 2009 and 8 April 2010) (Sanderson)

Re CHC Helicopters International Inc. – and – Chmyg, 2005 CLB 14329 (Glasner)

Re CHC Helicopters International Inc. – and – Chmyg, 2006 CLB 15998 (Glasner)

Curtis Lumber Co. Ltd. – and – Teamsters Local Union, No. 213 (18 March 1993), B.C.L.R.B. No. B72/93, 1993 CLB 14869, [1993] B.C.L.R.B. 44-06

ITT Multicomponents and RAE Electronics, Units of ITT Industries of Canada Ltd. – and – Teamsters Local Union No. 213 (11 January 1989), (letter decision)

J.S. Jones Timber Ltd. – and – Industrial, Wood and Allied Workers of Canada, Local 1-3567 (Debney Arbitration) (1999), 86 L.A.C. (4th) 105, 59 C.L.A.S. 157 (Hope)

Manning Kumagai Joint Venture – and – Tunnel & Rock Workers’ Union, Local 168 (Menhinick Grievance) (1987), 8 C.L.A.S. 100, [1988] B.C.D.L.A. 445-01, 1987 CLB 12981 (McPhillips, Coutts, Hall)

Modern Auto Plating Ltd. - and - United Steelworkers of America (Vuckovic Grievance), [1985] B.C.D.L.A. 190-42 (Longpre)

School District No. 67 (Okanagan Skaha) – and – Okanagan Skaha Teachers’ Union (Nicholson Grievance) (31 August 1998), (Jackson)

© Davis LLP 2014

Okanagan Skaha School District No. 67 – and – British Columbia Teachers’ Federation (1999), 83 L.A.C. (4th) 201, 57 C.L.A.S. 419, 1999 CLB 13338 (Jackson)

Open Learning Agency – and – British Columbia Government and Service Employees’ Union (Chaudhary Grievance), [1999] B.C.D.L.A. 500.03.60.20-03, 57 C.L.A.S. 180, 1999 CLB 13375 (Kelleher)

Open Learning Agency – and – British Columbia Government and Service Employees’ Union, Local 703 (Chaudhary Grievance), 60 C.L.A.S. 74, [2000] B.C.D.L.A. 500.36.60.00-03 (Kelleher) (letter decision)

Richmond International High School & College Ltd. – and – Richmond International Faculty and Staff Association (24 September 1992), (letter decision)

Road Runner Trailer Mfg. – and – Machinists, Lodge 1857, [1985] B.C.D.L.A. 405-07 (Germaine, Sullivan, Leibik)

Robert Gerow – and – Canadian Union of Public Employees, Local 801, B.C.L.R.B. No. B409/93, 1993 CLB 14867, [1993] B.C.L.R.B. 136-67

Robert Gerow – and – Canadian Union of Public Employees, Local 801 et al., B.C.L.R.B. No. B61/94, [1994] B.C.L.R.B. 246-10, 1994 CLB 15261

Robert Gerow – and – Canadian Union of Public Employees, Local 801 (24 May 1994), (letter decision)

Re St. Michael’s Centre Hospital Society – and – British Columbia Nurses’ Union (Mendoza Grievance) (1997), 49 C.L.A.S. 315, 1997 CLB 13384, [1997] B.C.D.L.A. 500.15.40.90-08 (Germaine)

St. Michael’s Centre Hospital Society – and – British Columbia Nurses’ Union (Mendoza Grievance) (18 February 1998), (letter decision and order) (Germaine)

Re Trinity Centre Care Society – and – Hospital Employees’ Union, Local 180, 1987 CLB 12255



Re Vancouver General Hospital – and – Hospital Employees’ Union (1988), 12 C.L.A.S. 19, 1988 CLB 11753, [1989] B.C.D.L.A. 190.06 (Munroe)

V.I. Care Management Ltd. (Sunnyside Manor) – and – International Union of Operating Engineers, Local 882, BCIRB C158/89, [1989] BCIRC 56-26

Yukon Energy Corporation – and – Public Service Alliance of Canada (unreported, 2013)

Human Rights

Bakhtiyari v. BCIT, 2006 BCHRT 122, (2006), CHRR Doc 06-133

Bakhtiyari v. BCIT (No. 2), 2006 BCHRT 482, (2006), CHRR Doc 06-647

Bakhtiyari v. BCIT (No. 3), 2006 BCHRT 494, (2006), CHRR Doc 06-660

Bakhtiyari v. BCIT (No. 4), 2006 BCHRT 591, (2006), 58 CHRR D/490

Bakhtiyari v. BCIT (No. 5), 2007 BCHRT 200 (2007), 60 CHRR D/107 + correction (11 May 2007)

© Davis LLP 2014

Bakhtiyari v. BCIT (No. 6), 2007 BCHRT 320 (2007), CHRR Doc 07-441 + correction (3 August 2007)

DPD Management Ltd. v. Itoman Canada Inc. (14 April 1992), Vancouver CA014795 (BCCA)

Findlay – and – Board of School Trustees School District No. 46 (16 May 1997), (BCHRC)

Gichuru v. Law Society of British Columbia (No. 2) (Case No. 1645), 2006 BCHRT 201 (+ correction 25 April 2006), (2006), CHRR Doc 06-245

Gichuru v. Law Society of British Columbia (No. 3) (Case No. 1645), 2006 BCHRT 402, (2006), CHRR Doc 06-542

Gichuru v. Law Society of British Columbia (Case No. 5564), 2008 BCHRT 215, (2008), CHRR 08-332

Gichuru v. Law Society of British Columbia (No. 2) (Case No. 5564), 2008 BCHRT 344, (2009), CHRR Doc 08-557

Gichuru v. Law Society of British Columbia, 2010 BCSC 522, (2010), CHRR 10-1242

Gichuru v. Law Society of British Columbia, (2010) 297 B.C.A.C. 115, 2010 BCCA 543, (2010) CHRR Doc 10-3557

Gichuru v. Law Society of British Columbia (No. 6) (Case No. 1645), 2009 BCHRT 360; (2009), CHRR D/305

Haje v. Itoman Canada Inc. (1982), 18 CHRR D/169 (BCCHR)

Handfield v. North Thompson School District No. 26 (1995), 25 CHRR D/452, (1995) 95 CLLC 145146 (BCHRC)

Jewkes – and – Velji et al. (3 February 1999), (BCHRC)

Pratchett v. B.C. (Ministry of Justice) and another, 2012 BCHRT 362

Vieira v. School District No. 42 (Maple Ridge-Pitt Meadows) and others, 2005 BCHRT 115, (2005), CHRR Doc 05-131

Vieira v. School District No. 42 (Maple Ridge-Pitt Meadows) and others, 2005 BCHRT 350, 53 CHRR D/223

Welder v. National Source Products Inc. (28 January 1994), (BC Council of Human Rights)

Wilkins – and – Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) (8 December 1999), (BCHRC)

Recognition

Best Lawyers in Canada (Administrative and Public Law)

Martindale-Hubbell BV rating (Distinguished)

Publications



© Davis LLP 2014


"Anatomy of a Failed Termination Process", Davis LLP Employment & Labour Law Conference (October 2012)

"You Did What!? Limits on Off Duty Conduct", Canadian Employment & Labour Conference 2012 - Toronto (May 2012)

"Can Off Duty Conduct Impact the Employment Relationship?", Canadian Employment & Labour Conference 2011 - Vancouver (October 2011)

"Retaliation in B.C. Human Rights Law", Davis LLP Employment & Labour Conference 2010 - Vancouver (November 2010)

"Conducting an Effective Workplace Investigation", Canadian Employment & Labour Conference 2009 - Vancouver (November 2009)

"A Canada-United States Comparative Analysis of Workplace Wellness Programs: The New Frontier of Human Resource Management and Law Reform", The Foundation for Legal Research (March 2009)

"Workplace Wellness and the Legacy of the Olympics", University of British Columbia National Centre for Business Law Conference (March 2008)

"Changes to the Criminal Records Review Act", Davis LLP Education Law Alert (January 2008)

"Amendments to the School Act and the Teaching Profession Act", Davis LLP Education Law Bulletin (June 2007)

"Managing the Disabled Employee", British Columbia School Personnel Association (February 2007)

"Bill C-45: Criminalization of Workplace Health and Safety", British Columbia School District Secretary-Treasurer's Association Professional Development Conference (October 2006)

"Managing Employee Absenteeism and Privacy of Employee Information", British Columbia School Personnel Association (October 2006)

"Business Law Update", Institute of Chartered Accountants of British Columbia Professional Development Conference (June 2005)

"Update on the Law of Human Rights", Continuing Legal Education Society of British Columbia (January 1994)

"Corporate and Partnership Disputes", Continuing Legal Education Society of British Columbia (January 1993)

"Recent Developments in the Law of Dismissal", Continuing Legal Education Society of British Columbia (January 1989)

"Criminal Prosecutions and the Employment Relationship", Continuing Legal Education Society of British Columbia (January 1989)

"Acquired Immunodeficiency Syndrome (AIDS) - The Legal Issues Are Also Frightening", The Advocate (January 1988)

© Davis LLP 2014

"Wrongful Dismissal: Jurisdiction of the Court Where a Collective Agreement Covers the Employee", The Advocate (January 1987)

"The Terms of the Employment Contract", Continuing Legal Education Society of British Columbia (January 1986)


Director, Governor General's Canadian Leadership Conference and former BC Regional Chair

Advisory Board, UBC Sauder School of Business

Advisory Board, UBC Law Alumni Magazine

Former Director, Vancouver Bar Association

Former Governor and Vice-Chair, Collingwood School

Lecturer, Continuing Legal Education Society of British Columbia and UBC Law School National Centre for Business Law

Workplace Wellness Project, pro bono research for Canadian Bar Association and Law Foundation of British Columbia

Editorial Board, Education Law Reporter

Member, American Bar Association and Canadian Bar Association






Education

Columbia Law School, New York, LL.M.

University of British Columbia, LL.B.

University of British Columbia, B.Com. (Honours)

Harvard Law School Certifications in Negotiation and Mediation

© Davis LLP 2014



Yukon, 2013

© Davis LLP 2014

Brian Tsuji

ASSOCIATE COUNSEL

VANCOUVER


Biography

Brian Tsuji is a highly experienced immigration lawyer with 31 years of experience. Brian works out of the firm's Vancouver office.

He has extensive experience with:

work visas and business visitor visas

provincial nominee program applications

immigration visas

investor visas and business immigration matters including representing individuals as well as local, national, and international corporations and organizations

Brian speaks Japanese and English and has worked in Tokyo, Toronto, and Vancouver. He has represented clients from more than 50 countries.

Brian has appeared as an Expert Witness on Canadian immigration law in the United States:

Karin M. Ericson v. Michael D. Foley divorce trial in Eagle County Court, Colorado, September 11, 2014

Brian is a past National Executive Member of the Canadian Bar Association (CBA) Immigration Section and a past Chairman of the CBA British Columbia Immigration Section.

Brian has written a number of papers on immigration law. He is the author and editor of the following publications:

The Provincial Nominee Program (PNP) Chapter in the Canada Law Book Canadian Immigration Book

The British Columbia PNP Chapter in the Carswell Canadian Immigration Book

Brian has also spoken at a number of conferences and seminars on immigration law.

He is also a Director of Nikkei Home, an assisted living centre for Japanese Canadians in Burnaby, B.C. and a Director of the Nikkei Place Foundation.

As a member of the Canadian National Team (Age Group), Brian Tsuji represented Canada at the ITU Triathlon World Championships (Age Group) in Edmonton, Canada on September 1, 2014.

© Davis LLP 2014

Notable Matters

Assisted VISCAS Corporation in obtaining work permits for engineers, site supervisors and cable jointers in relation to the East Calgary Transmission Project. (July 2014)

Advised INPEX on the $700 million acquisition of a 40% participating interest in the shale gas assets of Nexen Inc. (August 2012)

Recognition

Best Lawyers in Canada (Immigration Law) - 2014, 2015

AV® Preeminent Peer Review Rated by Martindale-Hubbell, 2014

Publications

"Canada Splits Temporary Foreign Worker Program into Two Streams", Davis LLP Immigration Law Bulletin (June 2014)

"Canada Makes Significant Changes to Temporary Foreign Worker Program and Canadian Permanent Resident Application Process", Davis LLP Immigration Law Bulletin (June 2014)






"Provincial (Immigration) Nominee Programs", North American Relocation Law (October 2013)

"British Columbia Provincial (Immigration) Nominee Program", A Practical Guide to Provincial Nominee Programs in Canadian Immigration Law (June 2013)




"Project Finance 2013 - Canada Chapter", Getting the Deal Through (September 2012)


"Help Needed: Changes to the Temporary Foreign Worker Regulations", Canadian Employment & Labour Conference 2011 - Calgary / Vancouver (October 2011)

© Davis LLP 2014

"Big Changes in Canadian Immigration Law", Davis LLP Immigration Law Bulletin (September 2010)


Immigration, Work Permit and Business Visitor Procedures (April 2014)

Immigration, Work Permit and Business Visitor Procedures (February 2014)

Shokokai Seminar, Immigration, Work Permit and Business Visitor Procedures (January 2014)

China Goes Global Symposium, Recent Changes to Immigration, Work Permits, Labour Market Opinions and Permit Residence Status Applications (November 2013)



Konwakai Seminar, Immigration, Work Permit and Business Visitor Procedures (June 2013)

Alberta Japanese Business Association Seminar, Canadian Immigration Changes and Solutions for Faster Processing (July 2012)

Konwakai Seminar, Canadian Immigration Changes and Solutions for Faster Processing (June 2012)

Shokokai Seminar, Canadian Immigration Changes and Solutions for Faster Processing (June 2012)

Davis LLP / Baker Donelson Presentation, Spring 2012 IFA Franchise Business Network Video Conference (April 2012)

Davis LLP Employment & Labour Conference, Canadian Employment & Labour Conference 2011 - Calgary (October 2011)


Education

LL.B., Queen's University, 1981

B.A., University of Toronto, 1978/1979


Ontario, 1989


1

Performance Management in the Age of Harassment

(Seriously, What’s the Point?)

Employment & Labour Law Conference

Presented by Michael Richards

You are stressing me

out! I am being harassed!

Would you just do your #&$%!! job!

Employer Rights

• Require employees to work

• Manage the business

• Comment on performance

• Conduct performance reviews

• Discipline

2

Employee Rights

• Freedom from harassment/abuse

• Reasonable demands, communicated clearly

• Assistance/Coaching

• Fair performance reviews

• Accommodation

Negative Consequences of Poor Performance Management

• Mental stress / disability leaves

• Lower productivity

• Negative morale

• Unionization

Legal Risks of Poor Performance Management

• Constructive Dismissal Claim

• Statutory Liability

• Tortious Liability

3

So Why Manage Performance?

• Assist the Employee

• Build a Case For Cause

• Defend a Decision toTerminate

What is Required to Prove Cause?

• Test for incompetence

• Will you pay anyway?

• How long will it take?

Better to Cut Your Losses?

• Benefits of an employment agreement

• Probationary period is your friend

4

What Are the Take Aways

• Know your goal

• Know your risks

• Decide on a plan

• Know when to cut your losses

• Employment Agreement

• Up to Date Policies

THANK YOU!

Michael Richards

Partner, Toronto and Vancouver

416.941.5395 | 604.643.2919

[email protected]

Follow us @DavisLLP

PROGRESSIVE DISCIPLINE IN AN AGE OF HARASSMENT

(OR, HOW IMPORTANT IS IT TO BE NICE?)

A. Introduction

Increasingly, employees are seeking legal representation to address hostile work

environments. Employees claim that they can no longer work due to their employer’s

failure to prevent an abusive workplace or the harassment of a supervisor or other

employee. This alleged harassment may not be based on a protected ground of

discrimination which would give the employee the right to file a human rights claim (e.g.

race, sex, age, sexual orientation, etc.), but rather is a personal attack on the

employee’s character, skills or competence, work ethic, or job security.

From the employee’s perspective, such harassment may very well be intolerable and

deserve a remedy. From the employer’s perspective there is seldom an express intent

to harass, but rather a desire to motivate without mollycoddling the employee. Other

times employers explain the conduct as being normal workplace banter, jokes, or

innocent personality quirks.

In the past decade the issue of workplace harassment has spread from the courts to the

legislature. In June of 2004, Quebec became the first Canadian jurisdiction to

implement anti-psychological harassment provisions in its employment legislation:

ss.81.18 to 81.20, An Act Respecting Labour Relations, 2002, c. 80, s. 47.

In June of 2010 the Ontario Occupational Health and Safety Act (the “OHSA”) was

amended to include provisions to address the protection of employees from workplace

violence and harassment. The provisions of OHSA require employers to assess the risk

of workplace violence and harassment in the workplace and to develop policies and

procedures with respect to both workplace violence and harassment. Employers are

required to review these policies as often as is necessary, and at least annually, to

ensure their continued effectiveness.

In July of 2013, British Columbia expanded the scope of the Workers Compensation

Act, (the “WCA”) to include injuries “... predominantly caused by a significant

work-related stressor, including bullying or harassment, or a cumulative series of

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significant work-related stressors, arising out of and in the course of the worker's

employment.” On November 1, 2013, WorkSafe BC’s new Bullying and Harassment

regulations came into effect for all provincially regulated employees in British Columbia

which require supervisors, employers and workers to take reasonable steps to prevent

or otherwise minimize workplace bullying and harassment.

This paper provides a brief overview of the potential liability an employer may face as a

result of workplace harassment in a non-union setting. Specifically, this paper will

examine:

claims in contract, and in particular, claims for constructive dismissal;

claims in tort, and in particular the claim of tort in intentional infliction of mental suffering; and

claims under statute, and in particular the availability of workers’ compensation

benefits for stress leave, bullying, and harassment.

B. The Quebec Position

Quebec’s legislation was the first of its kind in North America, but follows similar

legislation enacted in France in 2002. The legislation provides a historical perspective of

the growing legislative desire to regulate interpersonal conflict in the workplace.

The key provisions of the Quebec legislation are as follows:

81.18:

For the purposes of this Act, “psychological harassment” means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.

A single serious incidence of such behaviour that has a lasting harmful effect on an employee may also constitute psychological harassment.

81.19:

Every employee has a right to a work environment free from psychological harassment.

- 3 -

Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.

The purpose of the Quebec legislation was to increase productivity in the workplace by

improving morale. In seminars delivered during the introduction of the legislation,

Quebec’s Labour Standards Commission cited surveys showing that, as many as one in

ten workers, report they have been subjected to some form of harmful bullying,

intimidation or belittlement by a manager or co-worker.

A concern arising from the Quebec legislation was whether psychological harassment

would undermine traditional employer rights of managing the workplace, assigning

duties and responsibilities and imposing discipline. Quebec’s Labour Standards

Commission argued that it would not, and noted that procedures to minimize

psychological harassment are well known in unionized environments and have defined

the boundaries between harassment and management.

The introduction of the Quebec legislation raised questions that are echoed today in

British Columbia and Ontario. Does meeting a legislated proscription of harassment

create an overly expensive and time consuming undertaking for an employer (especially

the small business employer)? Where does one draw the line between actions that are

a justifiable exercise of an employer’s management rights, and harassment?

The balance of this paper considers the approach the Ontario and British Columbia

courts and legislature have adopted to date in addressing harassment (and in certain

cases, psychological harassment) in the non-union workplace.

C. Contractual Remedies

The Contractual Duty of Good Faith

The majority of the Supreme Court of Canada in Wallace1 held that those employers

who “in the course of dismissal” are not candid, reasonable, honest and forthright or

who engage in conduct which is unfair or is in bad faith, risk having the reasonable

notice period extended.

1 Wallace v. United Grain Growers [1997] 3 SCR 701 at para 98

- 4 -

The majority of the Court held that there was an “obligation” to act in good faith, but not

a contractual duty; bad faith conduct on its own would not give rise to an independent

contractual claim. The Court deferred to the legislature to impose a duty of good faith on

employers throughout the employment relationship.

Chief Justice McLachlin in her minority reasons was perplexed, failing to understand the

difference at law between an “obligation” of good faith and a contractual “duty” of good

faith. She held in her minority reasons that:

I differ from my colleague, however, in that I see no reason why the expectation of good faith in dismissing employees that [Iacobucci J.] accepts should not be viewed as an implied term of the contract of employment. To assert the duty of good faith in dismissing employees as a proposition of law, as does my colleague, is tantamount to saying that it is an obligation implied by law into the contractual relationship between employer and employee. In other words, it is an implied term of the contract. [at para 136]

About a decade later in Honda Canada Inc. v. Keays 2 , the Court revisited moral

damages arising from the manner of dismissal. The Court found there was an implied

contractual duty of good faith in the employment relationship during the course of

termination:

Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages. Examples of conduct in dismissal resulting in compensable damages are attacking the employee's reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right, permanent status for instance.

With respect to whether a duty of good faith exists in the employment contract other

than during termination, the Court adopted its earlier statement from Fidler v. Sun Life

Assurance Co. of Canada3,

2 2008 SCC 39 3 2006 SCC 30

- 5 -

…as long as the promise in relation to state of mind is a part of the bargain in the reasonable contemplation of the contracting parties, mental distress damages arising from its breach are recoverable.

Generally, with the exception of Quebec, the legal landscape today appears to be that,

absent clear contractual evidence showing the parties have agreed to a duty of good

faith throughout the entire employment relationship, none will exist. In Quebec, the Civil

Code of Quebec stipulates that civil rights must be exercised in good faith.

That being said, an employer who does not promote a harassment-free workplace may

risk a judge finding that, the parties did agree to elevate good faith to a contractual duty,

or that some other analogous implied term of the employment relationship was

breached as a result of the employer’s conduct.

Constructive Dismissal

A constructive dismissal is a present or anticipatory breach of a fundamental term of the

employment agreement. The employee has a right, but not an obligation, to treat the

agreement as at an end and bring an action for damages. Canadian courts have

accepted that abusive treatment may be grounds for a finding of constructive dismissal.

One of the earlier decisions to consider abusive treatment in the workplace is Berg v.

Cowie4. In Berg the employee refused to assist in milking cows and the employer

responded by calling the employee a “cur” among other choice words. While criticizing

the employee for refusing a lawful direction from the employer, the Court added that

“the servant is also, in my opinion, entitled to decent treatment at the hands of the

master.” The Court held that the employer’s language to the employee justified the

employee treating his employment as at an end. Subsequent courts have formulated

various tests for determining when conduct is sufficiently abusive as to amount to a

breach of a fundamental term of the employment agreement.

(a) Civility, Decency, Respect and Dignity

Courts in several Canadian jurisdictions have consistently held that a fundamental term

in every employment agreement is that the employer will provide the employee a

4 (1918) 40 DLR 250 (Sask CA)

- 6 -

working environment affording “civility, decency, respect and dignity.” A breach of that

fundamental term will amount to constructive dismissal.

This principle can be traced to a decision of the Alberta Courts in Lloyd v. Imperial

Parking Ltd.5. In Lloyd, the employer had been repeatedly rude and abusive toward the

employee. The Court held that “vulgar name calling, the failure to schedule holidays and

the suggestions of inappropriate sexual conduct with female subordinate workers”

would not support a claim for constructive dismissal. Instead, the Court found that the

conduct which breached the employee’s right to a civil, decent, respectful and dignified

workplace was “the repeated and continuous incidents of yelling and screaming…and

the repeated threats to terminate [the employee’s] employment”.

The principles in Lloyd were adopted in other Canadian jurisdictions, including the

provisions of Ontario, British Columbia and Newfoundland. For example, in Morgan v.

Chukal Enterprises Lt.d6, the employee was yelled at and belittled by a supervisor. The

supervisor’s behaviour continued for two years and the employee’s complaints to the

owners were left unanswered. The British Columbia Court held that the owners’ failure

to act to stop the abusive treatment of the employee amounted to a breach of the

fundamental term that the employee would be treated with “civility, decency, respect

and dignity” and resulted in constructive dismissal.

In Saunders v. Chateau Des Charmes Wines Ltd7 ., an employee had a series of

confrontational conversations and e-mail exchanges with the employee’s superior over

a two-week period. The superior used profane and abusive language and, during one

conversation, the superior indicated that he would likely remove the employee’s

management responsibilities. The Ontario Superior Court of Justice held that the

employer’s treatment of the employee was “hostile, aggressive, profane, rude,

demeaning and intimidating”. The court held that the employee was not treated with the

"civility, decency, respect and dignity" that he was entitled to expect. The treatment of

the employee was of sufficient severity and effect to amount to a repudiation of the

employment relationship.

5 [1996] A.J. No 1087 (Q.B.). 6 2000 BCSC 1163 7 [2002] O.J. No. 3990

- 7 -

Similarly, in Stamos v. Annuity Research and Marketing Services Ltd.8, the Ontario

Superior Court of Justice considered a case where an employee was subject to “verbal

harassment”, “intimidating tactics,” “unjustifiable attacks on her job performance,”

“unreasonable demands,” “sexist and bigoted language,” and “hostility” by a co-worker.

When the employee reported the behaviour to her employer, the employer told her to

keep her office door locked and avoid the co-worker. The court held that an employer

owes a duty to its employees to treat them fairly, with civility, decency, respect and

dignity and also held that an employer "has a broader responsibility to ensure that the

work environment does not otherwise become so hostile, embarrassing or forbidding as

to have the same effect." The Court ultimately held that the employer breached its duty

by failing to take corrective action to prevent bullying by the co-worker.

(b) Intolerable Employment

Some jurisdictions have held that an intolerable work environment in and of itself will

lead to a breach of the employment agreement as a whole and justify an action for

constructive dismissal, even where no fundamental term or condition of employment

has been breached.

In Shah v. Xerox Canada Ltd. [2000] O.J. No. 849 (C.A.), the Ontario Court of Appeal

upheld the lower court’s finding that:

…the court may find an employee has been constructively dismissed, without identifying a specific fundamental term that has been breached, where the employer’s treatment of the employee makes continued employment intolerable. [at para 6].

The Shah decision was followed by the British Columbia courts in Hanni v. Western

Railroad Systems (1991) Inc.9 and Danielisz v. Hercules Forwarding Inc.10 , and in

Ontario in Stamos v. Annuity Research and Marketing Service Ltd.11

The decisions indicate that Courts will intervene where they perceive an employee is

treated poorly.

8 18 C.C.E.L. (3d) 117 9 2002 BCSC 402 10 2012 BCSC 1155 11 [2002] OJ No. 1865

- 8 -

(c) The Employer’s Responsibility

The employer bears the burden of ensuring a harassment-free workplace. The Courts,

in assessing whether there has been a constructive dismissal, appear to place a greater

weight on the employer’s failure to take action to prevent harassment than on the nature

of the harassment itself. This means that a single incident of harassment is unlikely to

constitute grounds for constructive dismissal. However, repeated incidents which the

employer fails to address are more likely to provide grounds for an action. This

jurisprudence is akin to the legislation in Quebec, British Columbia and Ontario which

emphasize repeated conduct and the employer’s obligation to provide a work

environment free from harassment and bullying.

Courts have recognized that an employer will be liable for a claim of constructive

dismissal arising from an intolerable work environment, even where the cause of that

environment was the employee’s peers and co-workers.

In Stamos, one of the employee’s peers focused his anger on her, accusing her of

sabotaging his work. The Court rejected the argument that the conduct of a peer could

not give rise to a breach a fundamental term of the employment agreement because the

peer had no control over the employee’s employment. Instead, the Court upheld the

employee’s claim for constructive dismissal on the basis that “the employer consistently

failed to fulfil its obligation to the plaintiff to ensure that changes to the work

environment brought about by [the peer] did not render competent work performance by

[the plaintiff], or her continued employment intolerable”.

An employee who is subjected to unwanted harassment in the workplace from fellow

employees, customers, or suppliers, may have a claim for constructive dismissal if the

employer fails to take steps to address that harassment.

(d) Moral Damages for Constructive Dismissal

Wallace and Honda are authorities for the principle that bad faith dismissal will merit

additional damages. Therefore, query whether a constructive dismissal due to

harassment will automatically result in additional damages?

- 9 -

This issue was briefly considered in Chiang v. Kejo Holdings Ltd. dba Steveston

Collision and Mike Khan 12 . In Chiang, the employer failed to respond to sexual

harassment complaints of the employee. The employee resigned and brought a

constructive dismissal claim. The Court declined to award Wallace damages.

Unfortunately, the Court’s reasoning in Chiang is limited (judgment being oral) and the

reasoning behind why the employer’s conduct was sufficiently abusive to amount to a

constructive dismissal, but not abusive enough to merit bad faith damages, is unclear.

The Ontario Courts in Galbraith v. Acres International Ltd. 13 reached the opposite

conclusion: when the constructive dismissal has a harassment or discrimination

component, bad faith damages are appropriately awarded. Unfortunately, the analysis

in Galbraith is also sparse.

In Strizzi v. Curzons Management Associates Inc.14, the Ontario Superior Court of

Justice found that the employee was constructively dismissed because several

incidents had made the workplace intolerable for the employee:

The most serious work-related problem that Strizzi had, however, was in having to deal with Cardillo who was, to put it bluntly, a bully. Strizzi had experienced Cardillo’s unreasonableness and aggressivity during the telephone call in March 2003 which had left Strizzi and his wife in tears. He had again experienced it during the interchange at the beginning of September in regard to the September launch meeting. Cardillo’s behaviour during the opening few minutes of the September 30, 2003 telephone conversation brought home to Strizzi the impossibility of his continuing to work in an environment where his employer yelled at him, called him all kinds of names, falsely accused him of ruining his business, refused to have a dialogue or engage in reasonable, civil conversation, told him repeatedly how useless he was, made threats, and generally treated Strizzi in a way that no employee should be subjected to.

Nevertheless, the court declined to award Honda damages. The court found that no

evidence was tendered supporting Honda damages, despite finding that bullying was

sufficient to establish constructive dismissal.

12 2005 BCSC 414 13 [2001] O.J. No. 1036 (Sup. C .J.) aff’d [2002] O.J. No. 3606 (C.A.) 14 2011 ONSC 4292

- 10 -

However, where a constructive dismissal is caused by inherently bad faith conduct,

such as the creation of an intolerable work environment, Honda damages may flow. The

issue is unlikely to be whether bad faith damages will be awarded as a separate ground

of recovery, but rather, the amount of additional notice required as a result of the bad

faith conduct.

Aggravated and Punitive damages

Claims for aggravated and punitive damages which are plead as part of an action in

contract must arise independently of pecuniary loss (i.e. be based on independent

actionable wrongs). Aggravated damages are damages a defendant “should have

reasonably foreseen” in tort cases or “had in contemplation” in contract cases: Huff v.

Price15.

The Supreme Court of Canada commented on awards of aggravated damages in the

employment context, including how they related to damages for mental distress, in

McKinley v. BC Tel16:

The key principles for establishing the circumstances in which aggravated damages in wrongful dismissal actions may be awarded were set out by this Court in Wallace and in Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085. In Vorvis, McIntyre J. (writing for the majority) highlighted that unlike punitive damages, aggravated damages serve the purpose of compensation for intangible injuries. He stated that such damages could be awarded where: (1) an employer's conduct was "independently actionable", (2) it amounted to a wrong that was separate from the breach of contract for failure to give reasonable notice of termination, and (3) it arises from the dismissal itself, rather than the employer's conduct before or after the dismissal (pp. 1103-4).

These criteria were considered in Wallace, where the majority also recognized that aggravated damages could be awarded for mental distress flowing from a wrongful dismissal. However, in Vorvis and Wallace alike, aggravated damages were denied to the plaintiff.

Punitive damages are, as the Supreme Court of Canada noted in Whitten v. Pilot

Insurance Co [2002] 1 S.C.R. 595 at para 36,:

15 (1990), 51 BCLR (2d) 282 (CA) 16 2001 SCC 38

- 11 -

…awarded against a defendant in exceptional cases for "malicious, oppressive and highhanded" misconduct that "offends the court's sense of decency".

The case law makes it clear that an employer who creates or allows an abusive work

environment risks having to pay aggravated and punitive damages.

Limits of Contractual Liability

Not every derogatory comment should result in a successful constructive dismissal

action. The limits of a claim for harassment were recognized in the union context by

arbitrator Laing in Re British Columbia and B.C.G.E.U. (1995), 49 L.A.C. (4th) 193:

I do not think that every act of workplace foolishness was intended to be captured by the word “harassment”. This is a serious word to use seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by an objective standard, is fleeting. Nor should it be used when there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said “you should have known better”.

The test for whether employer conduct amounts to a contractual breach is an objective

one. The thin skinned employee may well find a work environment intolerable, but

would not have an action in constructive dismissal. This was the case for Mr. Laal in

Canada Safeway Ltd. v. Laal 2005 BCSC 457. In Laal, Mr. Laal was being sued by his

former employer for the return of relocation costs which were payable if he resigned

prior to working for a pre-determined period. Mr. Laal argued his employer had been

abusive and as such he had not resigned, but had been constructively dismissed. The

Court, however, concluded that, objectively, this was not an abusive environment. The

Court found [at paras 61 - 62]:

The situation in which Mr. Laal found himself was not optimal for a person of his limited experience and exacting personality. From his subjective viewpoint, it appears that in the short time he worked for Safeway, he felt himself to be over-worked, under-trained, under-compensated, not appreciated and isolated in the workplace. His situation evokes some sympathy, partly because Mr. Laal was put in the difficult position experienced by any single parent trying to balance a new career in a new town with the care of two young children.

- 12 -

However, Mr. Laal rushed into a job which he had difficulty handling due to his inexperience and rushed out of it again in a few short weeks, even though Mr. Lee had urged him to attempt to work with the staff and hang in for awhile longer until another position became available. There is no suggestion that the managers had any issue with Mr. Laal's ability to complete his tasks within a timeframe satisfactory to Safeway. They met his requests as they arose, speaking to the staff, providing training, meeting to discuss his concerns, and authorizing some overtime. To Mr. Laal's view, their response was inadequate and unsatisfactory. More can always be done in situations like this, but the response was reasonable. As unfortunate as the situation was for Mr. Laal, there is no basis upon which to find that Safeway fundamentally breached its employment contract with him.

Going hand-in-hand with the objective test is an express recognition by the Courts of an

employer’s right to manage its business. This reflects common sense; employees

should not be allowed to bring an action because they find their job duties, as opposed

to the job environment, intolerable.

An employer’s right to direct its workforce was confirmed in Gilman v. Society for

Information Children 17 . In that decision, the Court rejected a claim of constructive

dismissal due to a hostile work environment. The Court held that the employees’ claims

about their supervisor’s behaviour were not credible and that their actions in

disregarding the lawful instructions of their supervisor amounted to cause for their

dismissal.

D. Remedies in Tort

Intentional Infliction of Mental Distress

The tort of intentional infliction of mental distress is generally regarded as having

originated in the 1897 decision of Wilkinson v. Downton18. In Wilkinson a prankster told

a woman that her husband had been involved in a serious accident. The women went

into shock and her husband had to pay her medical bills. The Wilkinson decision

determined that a statement made and intended to have an effect of a damaging nature

is actionable when foreseeable damage occurs. Further, intention to cause damage

may be imputed where the effect is such as would objectively be expected. Rephrased,

17 2003 BCSC 1527 18 [1897] 2 QB 57.

- 13 -

the test becomes one of whether the reasonable person would have foreseen that the

conduct would result in harm: Bogden v. Purolator Courier Limited19.

The applicability of the tort of wilful infliction of mental suffering in the context of the

employment relationship has long been recognized by our Courts:

I, too, share his view that perhaps the appropriate area for seeking redress when an employer’s outrageous conduct towards an employee has caused foreseeable mental distress - and this is not such a case - it is by way of an action in tort based on a duty of care by persons, who are in that close relationship of employer and employee, to avoid acting in a manner plainly calculated to cause such mental distress.

Fitzgibbons v. Westpres Publications Limited20.

The elements needed to establish the tort of intentional infliction of mental distress are

three-fold:

the conduct must be flagrant and extreme;

the defendant’s conduct must be plainly calculated to produce some effect of the kind which was produced; and

the conduct must produce actual harm (a visible and provable illness).

The standard of “flagrant and extreme” is based on a reasonable objective assessment.

In one case, criticism of an employee for not completing his work during a working

notice period, was held to be “unreasonable and insensitive”, but was not “flagrant and

extreme” such that it merited an award of damages for the tort of intentional infliction of

mental suffering: Kalaman v. Singer Valve Co.21

In Piresferreira v. Ayotte,22 the Ontario Court of Appeal confirmed that an employee

must prove that the employer’s conduct was intentionally geared to producing the kind

of mental distress which ultimately resulted; the conduct must be both: [a] intentional;

and [b] calculated to produce harm. The Ontario court affirmed that reckless disregard is

not sufficient to establish the tort. The tort of intentional infliction of mental distress is

19 [1996] A.J. No. 289 (QB) 20 [1983] BCJ No. 164 (SC) 21 [1997] BCJ No. 1393 (CA) 22 2010 ONCA 384

- 14 -

separate and distinct from consequential claims for mental suffering arising from breach

of an employment contract. The tort is a separate actionable wrong and gives rise to

separate damages from the breach of contract claim.

In summary, the standard for the tort of intentional infliction of mental distress remains

high, and will only be made out in the most egregious circumstances.

Negligent Infliction of Mental Distress

The Courts have, to date, rejected the existence of a tort of negligent infliction of mental

distress in employment law. The seminal decision on whether an employer may be

liable for mental distress caused to one of its employees is Piresferreira v. Ayotte23.

There, the Ontario Court of Appeal considered whether there was a duty on the

employer to shield employees from acts in the workplace that might cause mental

suffering, including the acts of managers and other employees. Applying both Wallace

and Honda, the court found that, for policy reasons, such a duty should be rejected in a

negligence context. The court reasoned that the duty would be far more expansive than

the duty established in Wallace, and would represent a radical shift in employment law.

Given the Ontario Court’s analysis, the standard for the tort of intentional infliction of

mental suffering remains high, and will only be made out in the most egregious

circumstances.

Other Actions in Tort

Other actions in tort which have been advanced, and the roots of which can be traced to

an employer’s conduct, include:

The tort of defamation: Downham v. Lennox and Addington (County)24.

The tort of deceit: Asprey v. Royal Group Technologies Ltd.25

The tort of invasion of privacy: Jones v. Tsige26.

23 2010 ONCA 384 24 [2005] OJ No. 5227 25 [1999] OJ No. 1679. 26 2012 ONCA 32

- 15 -

E. Remedies in Statute

Human Rights

The Ontario Human Rights Code prohibits harassment based on the protected grounds

of discrimination (i.e. race, religion, sex, sexual orientation, etc.). An employee who is

subject to harassment on the basis of a protected ground of discrimination under the

Ontario Human Rights Code may have the right to file a claim of discrimination with the

Ontario Human Rights Tribunal.

Workers Compensation

Most provinces have enacted workers’ compensation schemes to compensate

employees who are disabled by accidents or diseases arising out of, and in the course

of their, employment. Ontario’s Workplace Safety and Insurance Act, 1997 (the “WSIA”)

has specific provisions regarding compensation for mental stress. Sections 13(3) and

13(4) of Ontario’s WSIA states the following:

13(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

13(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

[emphasis added]

On May 24, 2002, the Workplace Safety Insurance Board of Ontario (the “WSIB”)

adopted Operational Policy (Document 15-03-02) on Traumatic Mental Stress (the

“Policy”). The Policy creates a limited scope of compensation related to mental stress.

In order to be eligible for entitlement as a result of traumatic mental stress, a sudden

and unexpected traumatic event must have occurred. A traumatic event may be a result

of a criminal act, harassment, or a horrific accident, and may involve actual or

- 16 -

threatened death or serious harm against the worker, a co-worker, a worker’s family

member, or others. In all cases, the event must arise out of and occur in the course of

employment, and be:

1. Clearly and precisely identifiable

2. Objectively traumatic; and

3. Unexpected in the normal or daily course of the worker’s employment or work environment.

The Policy provides examples of “sudden and unexpected traumatic events.” With

regard to harassment, the following examples are noteworthy:

being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse)

being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous). [emphasis added]

The Policy makes clear that there is no entitlement for traumatic mental stress due to an

employer's decisions or actions that are part of the employment function, such as

termination, demotions, transfers, discipline, change in working hours, and change in

productivity expectations. However, the Policy states that workers are entitled to

benefits for traumatic mental stress due to an employer's actions or decisions that are

not part of the employment function, such as violence or threats of violence.

Based on the Policy, the scope of entitlement to compensation for workplace

harassment is restrictive, encompassing events that involve physical violence or life

threatening events. However, a recent decision of the Workplace Safety and Insurance

Act Tribunal (“WSIAT”) has significantly expanded the scope of entitlement for

workplace events that cause traumatic mental stress. In Decision 483/11, the WSIAT

held that a threat to a person’s physical welfare is not required for a finding of

entitlement to benefits based on traumatic mental stress. In this case, an educational

worker was accused of striking a student in an elementary classroom. An investigation

- 17 -

took place which exonerated the worker, but the worker claimed to have suffered

significant psychological harm and was ultimately unable to work as a result of the

mental stress caused by the allegations. The worker’s psychiatrist reported that she had

suffered major depression as a result. However, because the worker did not meet the

requirements for “post-traumatic stress disorder” (since there was no precipitating life-

threatening event as per the Policy) the WSIB denied her claim for traumatic mental

stress benefits.

The WSIAT overturned this decision, rejecting the long-standing trend of requiring the

traumatic event to be life threatening. The WSIAT held that the examples provided in

the Policy were not exclusive. Because Section 13 of the WSIA does not define the

phrase “sudden and unexpected traumatic event,” an exclusive interpretation of the

examples provided in the Policy would be inconsistent with that section.

This decision widens the scope of compensable events in traumatic mental stress

cases. As a result, employers may receive more claims for traumatic mental stresst.

However, claimants must still demonstrate that they were exposed to a workplace event

that is identifiable, objectively traumatic, and unexpected in the normal course of the

worker’s employment, and that a disabling psychological injury occurred as a result.

Retaliation

While beyond the scope of this paper, the authors do wish to highlight one additional

potential future issue: retaliation. In Ontario, the OHSA prohibits an employer from,

among other things, “imposing a penalty” upon the worker because the worker has

sought enforcement of the OHSA.

This may have an interesting impact on how employers respond to bullying complaints.

Often an employer will respond by moving the complainant to another location, or

changing that employee’s manager, resulting in the complainant shifting departments.

Under the WCA, a worker who does not agree to such a move may argue retaliation

forcing the employer to limit its response solely to the respondent.

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F. Practical Thoughts

Quite apart from potential legal liability, generally an employee who is subject to

harassment in the workplace will not be as productive or valuable as one who is not. As

such, most employers will want to ensure that their work environment is

harassment-free (and, likely, that their work environment is a positive one).

Prevention remains the best means for combating harassment. The following are some

suggestions to foster a work environment free from abuse:

Have a policy that addresses all harassment, discrimination and bullying.

Train everyone on the policy and how to engage in respectful interpersonal communications. This includes regular refresher training.

Implement and adhere to an effective dispute resolution mechanism. This includes effective reporting and effective investigation and decision making.

Encourage employees to bring forward complaints. Ensure that employees are aware of and understand the harassment policies or dispute resolution mechanisms in place in the employer’s organization.

Take quick and appropriate action to manage conflicts or address harassment issues.

In extreme circumstances, resort to specialized resources to assist, such as counsellors and psychologists.

G. Conclusion

Ultimately, there is no debate that a harassment-free workplace will reduce liability for

an employer. Efforts to maintain workplace harmony will be rewarded by an avoidance

of the types of liability this paper sought to address.

1

TRICKY ISSUES WITH VACATION

Presented by Maggie Campbell

The Basics

• Governed by Part 7 of the Employment Standards Act

• Two separate entitlements:

1. Vacation time (s.57)

2. Vacation pay (s.58)

• Earned during one year and can be taken the following year

• Cannot contract out or waive minimums

Vacation Pay: the Basics

• Starts to accrue after five days of employment

• 4% or 6% of total wages for period during which it was earned

• Payable seven days prior to vacation being taken, but usually compensation just continues

• Commissions payable during vacation are not vacation pay

2

Scheduling Challenges

• Generally, timing of vacation can be determined by employer

• Practically, denying vacation requests can lead to challenges

Paying Out and Banking• Paying out accrued

vacation pay does not affect entitlement to vacation time

• Only time in excess of minimums can be banked

Working During Vacation

• Can be tempting to stay connected and work during vacations

• Allowing work during vacation can result in liability

3

Working & Vacation: Best Practices

• Require out of office messages

• Foster culture where vacation time is respected

• Monitor amount of work performed during vacations

Vacation Accrual During Leave of Absence

• Some tricky rules when it comes to leaves like mat leave

• The ESA deems employment continuous for purpose of vacation

• Vacation time: always accrues

• Vacation pay: depends on wording of employment contract

• Generally, can’t pare down vacation to ESA minimums as a result of leave

Vacation and Termination

• Accrued and unused vacation should be paid out

• Vacation can’t coincide with statutory notice period or pay in lieu

• Vacation pay:

• payable on statutory pay in lieu

• generally not payable on contractual or common law pay in lieu

4

THANK YOU!

Maggie Campbell

Associate, Vancouver

604.643.6455

[email protected]

Follow us @DavisLLP

1

Ouch, That Hurts!Increasing Damages Awards


Presented by Wendy-Anne Berkenbosch

Introduction

• In addition to damages for payment in lieu of reasonable notice, wrongfully terminated employees may be entitled to aggravated damages or punitive damages.

• Employers may also be on the hook for increasing damages in the human rights context.

• The damages awards keep going up and up…

Notice Periods

• Employers who apply the “one month per year of service rule of thumb” do so “at their own peril”.

• There is no 24 month upper threshold for reasonable notice; as the workforce ages, expect reasonable notice periods to increase.

2

Damages: Up, Up and Away?

• The pendulum has swung towards higher damages, particularly in regard to aggravated and punitive damages.

• This trend is not only limited to the Courts; Human Rights Tribunals are also prepared to impose significant financial penalties on errant employers.

Punitive Damages Aggravated Damages

• Intended to punish the employer to deter future conduct.

• Not compensatory.

• Awarded where the employer’s conduct is harsh, vindictive and malicious.

• Intended to compensate the employee.

• Awarded when the circumstances of dismissal are insensitive, demeaning or humiliating.

Trend: Increasing Damages

• Following the Supreme Court’s decision in Honda v Keays, many thought that increased damages were less likely to be awarded.

• Recent cases suggest that these damages are far from dead…

3

Trend: Increasing Damages

• It used to be that large punitive awards tended to be jury awards and appellate courts would significantly reduce or eliminate punitive awards.

• Now, judges are prepared to impose significant punitive awards, and appellate courts seem more willing to uphold them.

Recent Decisions of Interest

Tipple v Canada (Attorney General) (2012, FCA)

• $250,000 award for loss of reputation upheld on appeal.

• Damages for loss of reputation are available where:

employee’s reputation is damaged by public knowledge of false allegations relating to termination;

employer fails to take reasonable corrective steps; and

damage to employee’s reputation has impaired his or her ability to find new employment.

4

Walsh v Mobil Oil Canada (2013, Alta CA)

• Employee suffered serious gender discrimination over several years.

• There is no statutory limit on the amount of damages available for mental distress, injury and loss of dignity.

• The employer’s unfounded position that the employee was terminated for cause throughout the litigation was a factor the court considered when assessing damages.

The City of Calgary v CUPE Local 38 (2013, Alberta Arbitration Board)

• Employee was repeatedly sexually assaulted by a senior employee.

• Manager’s solution was to install an extension on the employee’s desk to make it more difficult to approach her from behind.

• Employee provided stills from a spy camera she installed evidencing the assaults, but the manager said it was “inconclusive”.

The City of Calgary v CUPE Local 38 (2013, Alberta Arbitration Board)

• Employee suffered significant psychological problems as a result of the assaults.

• The Arbitration Board awarded over $800,000 in general damages and loss of income because the employer’s failure to respond resulted in life-altering adverse impacts.

• No punitive damages because significant compensatory damages already awarded.

5

Boucher v Wal-Mart Canada Corp (2014, Ont. CA)

• Jury awarded the largest punitive award in an employment case in Canada; award reduced on appeal.

• Manager was mentally abusive towards the employee: criticizing, demeaning and humiliating her in front of other staff.

• Employee reported abusive conduct to senior management, but no action was taken.

Boucher v Wal-Mart Canada Corp (2014, Ontario Court of Appeal)

• Wal-Mart had all the necessary policies in place:

Open Door Communication Policy

Prevention of Violence in the Workplace Policy

Harassment and Discrimination Policy

• Wal-Mart was held liable for failing to address bullying and harassment in the workplace; the manager was also held personally liable for his conduct.

OUCH!

• Human rights damages for injury to dignity: $75,000

• Loss of reputation: $250,000

• General damages: $125,000

• Aggravated damages: $85,000 to $200,000

• Punitive damages:

• $450,000 - $550,000 awards upheld on appeal

• $1,000,000 jury award reduced to $100,000

6

Practical Considerations for the Workplace

• Include clear termination clauses in employment contracts:

Ensure compliance with employment standards legislation;

Consider tailoring the clauses to the particular circumstances;

If using a formula, include a maximum amount;

Address rights and entitlements in the event of termination.


• Think carefully before asserting just cause:

Do not maintain allegations of just cause unless you can actually back it up.

Do not take steps that will damage an employee’s reputation in the community.

Maintain employee’s respect and dignity during the termination process and thereafter.


• Investigate employee complaints:

If you receive a complaint, treat it seriously!

Employee allegations of harassment, discrimination and abuse should be investigated thoroughly and promptly.

Institute sound investigative and other workplace policies.

It is not enough to have good policies on paper; you have to follow through.

7

THANK YOU!


Partner, Edmonton

780.429.6810

[email protected]

Follow us @DavisLLP

Davis: 17187303.1

Ouch, That Hurts! Increasing Damages Awards

By Wendy-Anne Berkenbosch and Matylda Makulska

1. Introduction

In recent years, there has been a notable increase in the quantum of damages

being awarded in employment-related claims. In addition to damages for payment in lieu

of reasonable notice, wrongfully terminated employees may be entitled to punitive or

aggravated damages. Increasing damages are also being awarded in the context of

human rights complaints. In a number of recent cases, employees have been awarded

record setting damages. Clearly, the pendulum has swung towards higher damages,

particularly in regard to aggravated and punitive damages. Employers should take note:

latest decision and award trends seem to indicate that Canadian courts and tribunals

are prepared to impose significant financial penalties on errant employers.

2. Notice Periods

It is well established that employers have an obligation to give employees notice

of termination, unless there is just cause for immediate dismissal. Where there is no just

cause for dismissal, employers must provide their employees with reasonable notice or

payment in lieu thereof. The critical question to be asked when an employee has been

dismissed is: what is the length of the reasonable notice period? To determine the

amount of reasonable notice, courts will evaluate each case individually, having regard

to the character of employment, the length of service of the employee, the age of the

employee and the availability of similar employment, also known as the Bardal factors.1

1 Bardal v Globe & Mail Ltd, [1960] OJ No 149 (Ct. J).

- 2 -

However, there have been some recent developments in the way in which courts now

assess reasonable notice periods.

(a) Is 26 Months the New Threshold?

The generally accepted upper threshold of reasonable notice in Canada has

traditionally been 24 months. However, in the recent Ontario Superior Court case of

Hussain v Suzuki Canada Ltd,2 a 35 year employee was awarded 26 months'

reasonable notice. The case involved a 65 year old Assistant Warehouse Supervisor

who had worked for Suzuki continuously for nearly 36 years. The employee had lost his

job due to corporate restructuring as a result of economic hardship. The court noted that

the employee’s skills were general skills obtained on the job and were less marketable

than skills that are the product of a definable trade, and that the employee was near the

end of his working years. Although each of the Bardal factors on their own were not

exceptional, the court held that the combination of factors amounted to exceptional

circumstances that warrant a 26-month notice period.

Employers ought to take note: there is no cap on the amount of reasonable

notice to which an employee may be entitled, since each case must be considered on

its own merits. If a court finds that “exceptional circumstances” exist in any given case,

an employer could be on the hook for a large sum of money, totalling more than 24

months reasonable notice.

(b) The Old “Rule of Thumb”

Traditionally, there was a “rule of thumb” applied in employment law. According

to this rule, a terminated employee was entitled to one month of reasonable notice per

year of service. Although the rule has the benefit of being predictable, certain and easy 2 [2011] OJ No 6355 (SC).

- 3 -

to apply, it is clear that there is no longer a true “rule of thumb” for determining how

much notice an employee is entitled to upon termination. The courts have made it clear

that each case is to be assessed based upon its own particular circumstances. The

Ontario Court of Appeal in Minott v O’Shanter Development Company Ltd3 held that the

rule of thumb approach suffers from two deficiencies: “it risks overemphasizing one of

the Bardal factors, length of service, at the expense of the others; and it risks

undermining the flexibility that is the virtue of the Bardal test.”4 As such, it is clear that

there is no single measure to determine the amount of reasonable notice that an

employee is entitled to.

More recently, the Saskatchewan Court of Appeal in Capital Pontiac Buick

Cadillac GMC Ltd v Coppola5 held that the rule of thumb was no longer supported by

the majority of cases. Furthermore, the court stated that “while employers may wish to

use the one month’s notice per year of service rule of thumb as a guideline in their day-

to-day decision-making given its apparent facility, they do so at their own peril because

the rule is not supported by the jurisprudence and is inconsistent with Bardal.”6 As such,

employers should resist the temptation of identifying an easy way to calculate notice

periods. At common law, calculating notice periods requires a contextual analysis taking

into account several factors, with each case determined on its merits. There are no hard

and fast rules.

3 [1999] OJ No 5 (ONCA). 4 Ibid at page 21 (QL). 5 2013 SKCA 80. 6 Ibid at para 22.

- 4 -

3. Trend: Increase in Damages Awards

In 2008, the Supreme Court of Canada in Honda Canada v Keays7 redefined the

law of damages in the context of employment. In particular, the court held that

extending the notice period was not an appropriate way to compensate for manner of

dismissal, and that punitive damages were restricted to cases of wrongful acts that were

so harsh, malicious and reprehensible so as to justify punishment and denunciation. As

a result of this case, it was thought by many that extended awards and punitive

damages were effectively no longer available in wrongful dismissal cases. However,

recent cases suggest that aggravated and punitive damages are far from dead.

Importantly, this trend of increased aggravated and punitive damages is not limited only

to wrongful dismissal claims, but also arises in the context of Human Rights Tribunals.

Also of significance is the fact that previously, large punitive awards tended to be jury

awards, and appellate courts, for the most part, had either significantly reduced or

eliminated punitive awards. As the cases below demonstrate, judges are now prepared

to impose significant punitive awards, and appellate courts are increasingly willing to

uphold them.

The object of punitive damages is to punish an employer in order to deter future

unfair conduct. Punitive damages are not aimed at compensating the employee. These

damages are exceptional and are awarded only when the employer’s conduct is

deserving of punishment because it is harsh, vindictive, reprehensible and malicious.8 In

the employment context, aggravated damages may be awarded to compensate an

employee when the circumstances of dismissal are insensitive, demeaning or

7 2008 SCC 39. 8 Ibid at para 68.

- 5 -

humiliating. Employers are held to an obligation of good faith and fair dealing in the

manner of dismissal.9 Aggravated damages are compensatory in nature (not punitive),

and are awarded when the plaintiff’s actual injuries have been aggravated by the

defendant’s behaviour.10

The following cases provide some sobering examples of recent awards.

In Higginson v Babine Forest Products Ltd and Hampton Lumber Mills Inc,11 the

employee worked for the employer for 34 years prior to the termination of his

employment. He had worked as an electrical supervisor in a sawmill where the closure

was imminent. The employee took the position that his employer’s allegations of just

cause for termination were an attempt to avoid providing him with reasonable pay in lieu

of notice. The allegations of just cause failed and the employee was granted 24 months’

notice, with some deduction for failure to mitigate. A jury awarded the employee

$236,000 in compensatory damages for wrongful dismissal and $537,000 in punitive

damages. This was the highest award of punitive damages in a Canadian wrongful

dismissal case at the time, until Boucher v Wal-Mart12 (discussed further below).

The Federal Court of Appeal in Tipple v Canada (Attorney General)13 addressed

the issue of damages when the employee experienced loss of reputation arising from

the suggestion that his employment was terminated due to misconduct. The adjudicator

awarded approximately $1.4 million in damages to the former employee, including:

nearly $690,000 for lost wages, $110,000 for lost performance bonus, $110,000 for lost

benefits, $125,000 for psychological injury, $250,000 for loss of reputation and over 9 Boucher v Wal-Mart Canada Corp, 2014 ONCA 419 at para 67. 10 Lewis Klar, Tort Law, 4th ed (Toronto: Thomson Canada Limited, 2008) at 121. 11 2010 BCSC 614. 12 Supra note 9. 13 2012 FCA 158.

- 6 -

$45,000 for obstruction of process. The adjudicator found that the employer’s actions

had contributed to the employee’s damages, and the employer had not taken steps to

minimize the damage to his reputation that they should have taken. On judicial review,

the Federal Court set aside the award of damages for psychological injury, loss of

reputation, and obstruction of process. The court believed the employee was entitled to

moral damages, but felt that the amount was too high and sent the matter back to the

adjudicator to be reassessed. On appeal, however, the Federal Court of Appeal

accepted that the employee’s reputation was damaged by false accusations related to

his termination and restored the $250,000 award for loss of reputation. In doing so, the

Court of Appeal held that damages for loss of reputation stemming from a wrongful

termination are available where: (a) the employee’s reputation is damaged by public

knowledge of false allegations relating to the termination; (b) the employer fails to take

reasonable corrective steps and offers no reasonable excuse for such failure; and (c)

the damage to the employee’s reputation impaired his or her ability to find new

employment.14

A self-represented litigant in Kelly v Norsemount Mining Inc15 achieved a

significant punitive damage award of $100,000. The employee alleged that he was

dismissed because he insisted on compliance with securities regulations. The employer,

on the other hand, alleged the employee was dismissed for cause on the basis of fraud

and incompetence. The employer maintained those allegations for seven years, and

threatened to bankrupt the employee in an attempt to dissuade him from pursuing his

legal rights. In awarding punitive damages, the British Columbia Supreme Court held

14 Ibid at para 16. 15 2013 BCSC 147.

- 7 -

that the employer breached its duty of good faith and conducted itself both at the time of

termination and afterwards in a manner that could be described as harsh, vindictive,

reprehensible and malicious. The court further determined that since the general

damages award was relatively small, an additional and significant award of punitive

damages was necessary to effectively deter the employer.

Interestingly, in Morgan v Herman Miller Canada Inc,16 the Human Rights

Tribunal of Ontario awarded damages of $70,000 to a former employee, despite finding

that no discrimination had occurred. The Tribunal determined that the employee had not

established on a balance of probabilities that he was assigned menial and demeaning

tasks because of his colour. The employer eventually terminated the employee alleging

just cause on the basis that the employee’s “campaign of misinformation” caused

unnecessary alarm amongst co-workers. The Tribunal held that the employer’s decision

to terminate the employee’s employment was made as a reprisal for expressed

concerns about harassment and discrimination. As such, the employee was awarded 14

months’ lost wages and $15,000 as damages for injury to dignity, feelings and self-

respect. It was further ordered that the employer have its human rights policies

reviewed and its managers trained in their application. In addition, the individual

manager responsible for the termination was directed to undergo human rights training

(despite the fact that the manager was no longer with the employer).

The British Columbia Human Rights Tribunal decision of Cassidy v Emergency

Health Services Commission (No 5)17 is particularly significant in the context of

damages, not for the size of the award, but for the fact that the individual manager was

16 2013 HRTO 650. 17 2013 BCHRT 116.

- 8 -

held jointly and severally liable. The employee, who had multiple sclerosis, worked as a

paramedic. As a result of his disability, he was not able to manually palpate a pulse.

The Tribunal found both the employer and the manager liable for failing to

accommodate the employee after his suspension from duty. Not only did the manager

fail to support the employee in his search for accommodation, the Tribunal also noted

that the manager took steps intended to thwart the employee’s efforts to be

accommodated and actively sought to keep the employee out of an ambulance. This

conduct justified a finding of personal liability against the manager. As such, the

Tribunal awarded $22,500 for injury to dignity, feelings and self-respect, as well as

damages for lost wages and benefits. These damages were payable jointly and

severally by the employer and the manager. This means that both parties were

responsible for the full amount of the obligation.

In Walsh v Mobil Oil Canada,18 the employee filed a complaint with the Alberta

Human Rights Commission alleging discrimination on the basis of gender over a period

of several years. The employee was initially hired as a junior map clerk, and although

she received several promotions while working for the employer, she also faced serious

gender discrimination. Neither her pay scale nor her designations kept pace with her

actual responsibilities, her abilities, her education, or the pay and designations of her

male peers. When the Alberta Human Rights Tribunal dismissed the employee’s first

complaint, the employer terminated her employment claiming it had cause to do (this

claim was later rejected by the Court of Queen’s Bench). The exclusive focus of the

Alberta Court of Appeal in this decision was about remedy. In considering the

appropriate award for general damages, the court noted that in Alberta there is no 18 2013 ABCA 238.

- 9 -

statutory limit on the amount of damages available for mental distress, injury and loss of

dignity flowing from discriminatory conduct. The Court of Appeal upheld the lower

court’s award of $25,000, but reasoned that the award was on the low end of what was

appropriate in the circumstances, given the wilfulness of the employer’s conduct, the

duration of the conduct, the damaging impact on the employee, and the untenable

position that the employer maintained throughout the litigation that the employee was

terminated for cause.

In Tl’azt’en First Nation v Joseph,19 the Federal Court gave further direction

about when it is appropriate to award aggravated and punitive damages. The employee

was employed by the First Nation for more than 30 years prior to his dismissal. After the

employee sent a letter to the executive director criticizing his management style, the

executive director began to target the employee with unsupported claims of fraud and

mismanagement. As a result of the threatening and harassing conduct, the

complainant’s health deteriorated to the point that he was compelled to take medical

leave. While on medical leave, the executive director proceeded to widely distribute

accusations of criminal wrongdoing, insubordination and sexual assault of another

employee. The employee was then fired without notice. With regard to aggravated

damages, the Federal Court reasoned that the adjudicator awarded the aggravated

damages flowing from the manner in which the employee was dismissed, and that

$85,000 was entirely justifiable given the heavy handed conduct in this case. With

regard to punitive damages, the court further reasoned that $100,000 was justifiable as

the employer’s conduct was reprehensible, dishonest, malicious, deliberate, despicable,

deceitful and in bad faith. 19 2013 FC 767.

- 10 -

The Ontario Court of Appeal recently rendered a decision in Pate Estate v

Galway-Cavendish and Harvey (Township)20 where it held that significant punitive

damages were appropriate. The case involved a building inspector who was dismissed

without notice. The employer alleged that the employee kept permit fees. The

employee was criminally charged and eventually acquitted. It was later determined that

the employer had withheld exculpatory evidence from the police, and the court

concluded that had this evidence been provided to the police, the former employee

would not have been criminally charged in the first place. Although the trial award of

punitive damages was reduced from $550,000 to $450,000, this is the second largest

punitive damages award to survive review by an appellate court in the employment law

context.21 This case is significant not only because of the size of the award, but also

because the original award was by a trial judge and not a jury. The Supreme Court of

Canada refused leave to appeal.

In keeping with the trend of damages awards increasing, in IBM Canada Limited

v Waterman,22 the Supreme Court of Canada confirmed that employers may not deduct

earned pension benefits from wrongful dismissal damages. The employee had been a

long-time member of IBM’s defined benefit pension plan and had a fully vested interest

in the plan when he was terminated without cause with two months’ notice. Both his

employment contract and the plan were silent on employee rights and entitlements in

the event of termination without cause. The Supreme Court determined that the private

insurance exception applied in this case, which provides that payments from private 20 2013 ONCA 669. 21 The largest punitive jury award in an employment law case to survive appeal was in McNeil v

Brewers Retail Inc, 2008 ONCA 405. The jury awarded $500,000 in punitive damages and the Ontario Court of Appeal upheld the award. 22 2013 SCC 70.

- 11 -

insurance are not typically deductible from damage awards. Furthermore, the contract

of employment did not contain any general bar against receiving full pension entitlement

and employment income. The court also considered broader policy objectives and, in

particular, was concerned that allowing the deduction would create an economic

incentive for employers to dismiss their pensionable employees before other

employees. Though this case holds that pension payment should not typically be

deducted from wrongful dismissal damages, the Supreme Court has left open the

possibility for employers to expressly stipulate in the employment agreement that

wrongful dismissal damages and pension benefits will not be paid simultaneously. Since

this case was decided in 2013, it has already been applied in several decisions.23

In The City of Calgary v CUPE Local 38,24 an employee of the City of Calgary’s

Roads Division was repeatedly sexually assaulted by a senior employee, including

repeated fondling while she was at her desk. When the employee reported the assaults

to her manager, his solution was to install an extension on the employee’s desk to make

it more difficult to approach her from behind. At a meeting with the manager, the

employee described the assaults and provided stills from a spy camera she had

installed, however, the manager found the evidence to be inconclusive. She

subsequently went on a stress-related medical leave of absence and was hospitalized

twice for contemplating suicide. An independent medical examination concluded that

the sexual assaults and their aftermath were the primary causal factors of the

employee’s psychological difficulties and would require extensive treatment to improve

her functioning. The Arbitration Board awarded the employee $125,000 in general 23 Morris v ACL Services Ltd, 2014 BCSC 1580; Lethbridge Industries Ltd v Alberta (Human

Rights Commission), 2014 ABQB 496; and Liu v Everlink Services Inc, 2014 HRTO 202. 24 2013 CanLII 88297 AB GAA.

- 12 -

damages, as well as over $700,000 for damages for loss of income, on the basis that

the city’s failure to respond to the situation resulted in a serious and life-altering adverse

impacts. Interestingly, the Board declined to award punitive damages, observing that

punitive damages are only awarded when the compensatory damages are insufficient to

accomplish the purpose of retribution, deterrence and denunciation, and in this case,

significant compensatory damages were already awarded.

The decision of Kelly v University of British Columbia (No 4)25 is significant, as

the British Columbia Human Rights Tribunal awarded the complainant $75,000 in

damages for injury to dignity, which is more than double the previous highest award for

this type of injury set in 2008.26 The complainant was a medical resident at UBC

Medical School. He suffered from ADHD and had a non-verbal learning disability. After

failing his first rotation in the residency program, he disclosed his disabilities and was

asked to see a psychiatrist. In 2007, the complainant was dismissed from the family

medicine residency program for unsuitability. In making the award for injury to dignity,

the Tribunal noted the following factors: the effect of the termination on the

complainant’s ability to fulfill his lifelong dream of practising medicine; the humiliation

and embarrassment he experienced when he was forced to seek employment in

medicine-related fields; the impact on his personal life; and the fact that he was in a

vulnerable position in that he was a student who had a disability. This case may signal

the court’s increasing willingness to increase this kind of damages award in the future.

25 2013 BCHRT 302. 26 The previous highest damages awarded for injury to dignity was $35,000, awarded in Senyk v

WFG Agency Network (BC) Inc, 2008 BCHRT 376.

- 13 -

In Boucher v Wal-Mart,27 the jury awarded the largest punitive award in an

employment law case in Canada, however, this award was subsequently reduced on

appeal. The former employee complained that her relationship with her immediate

supervisor turned sour after an incident in May 2009 in which she refused to falsify a

temperature log. The employee alleged that this caused the manager to be mentally

abusive towards her, criticizing, demeaning and humiliating her in front of other staff.

When the employee complained of her supervisor’s conduct to Wal-Mart’s senior

management, she was told that her claims were unsubstantiated. Wal-Mart did not take

any action against the supervisor. At trial, the jury found that the employee had been

constructively dismissed and awarded $1 million in punitive damages and $200,000 in

aggravated damages as against Wal-Mart, and $100,000 for intentional infliction of

mental suffering and $150,000 in punitive damages as against the supervisor

personally. The Ontario Court of Appeal reduced the punitive damages against the

supervisor on the basis that since the other damages were so high, the compensatory

award carried a strong punitive element. As such, the supervisor’s punitive damages

were reduced to $10,000 and Wal-Mart’s punitive damages were reduced to $100,000.

Although the Court of Appeal reduced the portion of the award representing punitive

damages, it upheld other aspects, leaving the employer liable for a large sum of money.

Employers ought to be aware that failing to address bullying and harassment in the

workplace could lead to a claim for constructive dismissal and may itself constitute

conduct causing mental distress that can give rise to an award for aggravated damages.

27 Supra note 9.

- 14 -

As we can see, while all of these cases have different facts, the result is often the

same: courts are increasingly willing to punish employers for what the court views as

poor conduct in the course of the employment relationship and following termination.

4. Practical Considerations for the Workplace

The cases explored in this paper help to illustrate the extent to which Canadian

courts and Tribunals are prepared to award extensive damages against errant

employers. The old “rule of thumb” no longer applies, and employers should not think

that previous maximums awarded by courts will protect them from further liability.

However, there are steps employers can take to limit potential damages that may be

awarded against them.

As a starting point, employers should include clear and concise termination

clauses in their employment contracts, limiting notice periods or payment in lieu of

notice. In order to increase the enforceability of these clauses, employers should

consider tailoring those clauses to the circumstances. For instance, in the case of a

lower level employee, the minimum amounts set out in employment standards

legislation may be appropriate. However, in the case of a higher level employee,

consider using a formula for calculating notice periods that includes a maximum amount

payable. In addition, in cases where a departing employee signs a release following

termination, it is important that the release is clear and concise, and that the employer is

forthright when presenting it to the employee.28 Where a court is satisfied that the

release is drafted using simple plain language and it was clearly explained to the

28 Marquardt v Strathcona County, 2014 AHRC 3.

- 15 -

employee, it is likely that an employer can limit liability for any future claims raise by the

former employee.

The importance of setting out each party’s entitlement in the employment

contract cannot be understated. For instance, as stated previously, in IBM Canada

Limited v Waterman,29 the employment contract was silent on rights and entitlements in

the event of termination without cause. Though this case held that pension payments

should not typically be deducted from wrongful dismissal damages, the Supreme Court

left open the possibility for employers to expressly stipulate in the employment contract

that wrongful dismissal damages and pension benefits would not be paid

simultaneously.

Following the termination of an employee, employers should think carefully

before asserting just cause. Allegations of just cause should not be maintained

throughout litigation, unless an employer is prepared to fully substantiate those claims.

Otherwise, a court may consider this as a factor when assessing the damages awarded

to the former employee. For instance, in Walsh v Mobil Oil Canada,30 the fact that the

employer maintained throughout the litigation that the employee was terminated for

cause, even though this was entirely unfounded, was a factor in the court determining

that the lower court’s damages award was on the low end of reasonable. Further to this

point, employers ought not to take steps that have the effect of damaging an

employee’s reputation in the community. As seen in Tipple v Canada (Attorney

General),31 the Federal Court of Appeal accepted that the employee’s reputation was

29 Supra note 22. 30 Supra note 18. 31 Supra note 13.

- 16 -

damaged by false accusations relating to his termination, and awarded $250,000 for

loss of reputation.

In addition, employers must not underestimate the importance of investigating

employee claims thoroughly and promptly. It is essential for employers to have an

investigative process; not only can it identify potential situations giving rise to a need for

action or accommodation at an early stage, but it can also lead to an effective resolution

of workplace issues. Workplace investigations relied upon by employers in subsequent

civil or human rights proceedings will be subject to intense scrutiny. As we have seen, in

City of Calgary v CUPE Local 38,32 the Arbitration Board awarded over $800,000 in

damages, largely due to the city’s failure to respond to the employee’s complaints. In

that case, the employee was sexually assaulted several times by her supervisor, both

before and after she made her initial complaint. Employers must take note: if you

receive a complaint, treat it seriously!

It is clear that having a sound investigative policy in place is an important step in

minimizing potential damages claims, however, it is not enough to merely have good

policies on paper. The entire workforce needs to know what the policies mean, and, if

there is a breach, that management will react quickly and competently. The case of

Boucher v Wal-Mart33 is instructive on this point: despite the fact that Wal-Mart is a large

sophisticated organization, it was still held liable for the misconduct of an employee.

Wal-Mart had all the necessary policies in place: the Open Door Communication Policy,

the Prevention of Violence in the Workplace Policy and the Harassment and

Discrimination Policy. The employee testified that despite these policies, she was

32 Supra note 24. 33 Supra note 9.

- 17 -

subject to harassment which led her to quit her job. As such, employers ought to be

aware that failing to address bullying and harassment in the workplace could lead to a

claim for constructive dismissal and may itself constitute conduct causing mental

distress that can give rise to an award for significant damages.

5. Conclusion

It is likely that the trend of courts and tribunals increasing damages awards will

continue. Employers must take the potential for these awards into account while striving

for best practices in the difficult circumstances of terminating an employee. The

message that is being conveyed by the courts is that employers ought to ensure that

employees are treated appropriately during the course of employment and at the time of

termination. Otherwise, the employer could be on the hook for a large sum of money.

1

The Verbal and Written Reference:You Would Be Lucky To Get This

Employee To Work For You


Presented by Richard Press

The secret to working for the Earl of Grantham (Downton Abbey)?

A strong reference from a peer

Must You Provide a Reference?

• No

• An earl could not be compelled to praisean unsuitableemployee

2

What About Today?

• Social mores have shifted.

• An unreasonable refusalto provide a referencewill be sanctioned

Liability For Not Providing A Reference

• Extended notice period

• Moral damages

• Punitive or aggravated damages

Liability for Providing A Reference

• If the reference is false or misleading:

• Extended notice period, moral damages, aggravated or punitive damages

• Defamation

• Misrepresentation claim

• Liability still arises from a false reference made in good faith

3

What to Do?

• Let’s look at the pros and cons

References - Pros

• Increase likelihood of mitigation

• A reference helps an employee geta job

• A job mitigates potential damages

References - Pros

• Impresses a court

• No chastisement for failureto provide a reference

• Affirms employer acting ingood faith

4

References - Pros

• Generates goodwill with employee

• Employee less likely to bring an action against a reference

References - Pros

• Assists with privacy issues

• Provides script for verbal references

References - Cons

• Relationship at termination may be poor

• Employee’s performance may belie even a marginally good reference

5

References – Cons

• Possible liability for false or misleading statements

• Liability uncertain in Canada

• No cases quite there yet in Canada

• American cases do exist

What is a False or Misleading Statement?

• Chronically absent?

• A man like him is hard to find

• It seemed her career was just taking off

• Dishonest?

• He's an unbelievable worker

• Her true abilities were deceiving

(Just in case you need these)

• Unproductive?

• You would indeed be fortunate to get this person to work for you

• All in all, I cannot say enough good things about this candidate or recommend him too highly

• Alcoholic?

• Every hour with him was a happy hour

• We often found him loaded with work do to

6

Verbal References – Pros and Cons

• Same pros as for written references

• Cons are increased privacy concerns

Top 10 Take-A-Ways

10. Offer a Reference

9. Copy the Employee

8. Centralize

7. Do Not Leverage

Top 10 Continued

6. Be Consistent

5. Quote Yourself

4. Do Not Mislead (including by omission)

3. Written References Are Scripts

7

Top 10 Continued

2. Consider Waiver and Consent

1. Communicate

THANK YOU!

Richard Press

Partner, Vancouver

604.643.6444

[email protected]

Follow us @DavisLLP

THE VERBAL AND WRITTEN REFERENCE: OR, “YOU WOULD BE LUCKY TO GET THIS EMPLOYEE TO WORK FOR YOU!”

Richard Press

604.643.6444

Vancouver Employment and Labour Law Conference - October 3, 2014

A. Introduction

We learn by season four of Downton Abbey the importance of the reference letter.

Having been dishonourably discharged, Edna re-appears for an interview with Cora and

Rose, supported by the glowing reference of Mrs. Hughes that Branson had convinced

her to pen. Inveigling her way back into employment, she soon displays her true colours

and is scheming and causing strife in the workplace.

The landscape of 1920s aristocracy in England is not the 2010s in Canada. However,

even today, there can be little doubt that most employers still depend heavily on

references in making hiring decisions.

What has changed over the past century are the considerations behind whether an

employer should provide the reference letter. In the 1920s, the calculus was

straightforward: if the employee did a good job, you provided a good reference,

otherwise, you did not.

In today’s legal climate, issues of liability for defamation, privacy breach, and

misrepresentation have left many employers forsaking references, verbal and written, in

favour of the employment verification letter.

In this paper we ask what is the best practice with respect to issuing references. To

answer that question, we consider:

1. What potential liabilities does an employer face in refusing to provide a

reference?

- 2 -

2. What potential liabilities does an employer face in agreeing to provide a

reference?

3. What is the impact of privacy legislation on an employer’s ability to provide

references?

This paper concludes with our top 10 practical tips for best practices in providing

references.

B. Liability For Not Providing A Reference

At common law an employer does not have an obligation to provide a reference for a

former employee.1 This harkens from the Downton Abbey days when the Courts would

not require a member of the aristocracy to provide a reference should the employee not

be deemed suitable.

As social mores have shifted, so too have the obligations on employers. Today, an

unreasonable refusal to provide a letter of reference is a factor the Courts will consider

in determining the period of reasonable notice and in assessing additional damages

against an employer.2

Justice Iacobucci in the Supreme Court of Canada decision, Wallace v. United Grain

Growers Ltd.,3 expressly provides as an example the unreasonable failure to provide a

letter of reference as the type of conduct that could be an indication of bad faith leading

to additional damages in wrongful dismissal.

In Defaria v. XTRA Canada,4 the plaintiff branch manager, who was 50 years old, had

been terminated without cause after working for the defendant employer for seven

years. The plaintiff’s counsel wrote a letter to the Vice-President of the defendant,

requesting a letter of reference. He never received one. The Court was critical of this

failure to provide a reference letter and stated:

1 Shinn v. TBC Teletheatre B.C., 2001 BCCA 83 at para 11

2 See Lim v. Delrina (Canada) Corp., 1995 CanLII 7271 (ONSC); Barakett v. Levesque Beaubien

Geoffrion Inc., [2001] N.S.J. No. 426 (C.A.) 3 [1997] 3 S.C.R. 701 at paras 99-101

4 Defaria v. XTRA Canada, [2008] O.J. No. 377 (S.C.J.)

- 3 -

[48] Balancing the Bardal factors, I conclude an appropriate notice period is nine months. However, in this case, having regard to the very nasty and disrespectful way in which the plaintiff was treated by Mr. Morrison, and to the fact that he was not provided with a letter of reference, which likely made it more difficult for him to obtain employment, I set the notice period at 10 months. This amounts to a one month increase in the notice period on the basis of the factors referred to in Wallace v. United Grain Growers, supra.

[emphasis added]

Likewise, in Pioro v. Calian Technology Services Ltd.,5 the plaintiff’s employment with

the defendant was terminated by letter offering the equivalent of 30 weeks’ salary and

advising that his benefits would continue until the end of the notice period. The

termination letter also stated that he would be receiving a reference letter.

The plaintiff rejected the offer because the employer refused to acknowledge that he

had been an employee for 19 years and that he held the position of Manufacturing

Manager. The defendant employer instead took the position that he was a production

supervisor.

In addressing the reasonable period of notice the court stated:

[28] In the present case, although the company records in my view clearly establish that Pioro held the position of the Manufacturing Manager, Calian has, from the date of the termination, taken the position that Pioro held the lower level position of production supervisor, although there is little evidence to support that position. I accept the evidence of Pioro that the position taken by Calian caused him great difficulty in terms of applications for future employment knowing that Calian, on a reference check, would indicate that he was only a production supervisor. I can only conclude that this was a calculated effort by Calian to limit its liability with respect to the determination of reasonable notice. Given that the position taken by Calian is in marked contrast to its own corporate records and that Pioro, as a former employee in search of new employment, was at his most vulnerable, I conclude that Calian did not meet its

5 [2000] O.J. No. 1749 (S.C.J.) at para 28

- 4 -

obligation of good faith and fair dealing in these circumstances. Further, I note that, although promised, a letter of recommendation was never sent to Pioro.

[emphasis added]

Given the plaintiff’s age (45), position of Manufacturing Manager, 19 years of service,

and the defendant’s conduct, the court concluded that the appropriate notice period was

22 months.

This is not to say an employer must always provide a reference. There will be

circumstances where a refusal to provide a reference is justified. However, the

employer who arbitrarily, unreasonably or in bad faith refuses to provide a reference

letter risks additional liability.

C. Liability for Providing a Reference

An employer who provides an accurate, careful, and good faith reference will not face

liability. Unfortunately, whether a reference is accurate, careful and in good faith is often

open to interpretation. It is the desire to avoid this type of debate that has led many

employers to implement policies to only provide an employment verification letter.

An employer who inaccurately, carelessly, or maliciously prepares a reference letter

exposes itself to potential liability, not only with respect to increased damages for

wrongful dismissal, but also for tort claims in defamation.

An employer may also be liable to third parties who rely on the employer’s reference

letter in hiring the applicant employee. That liability is founded on the tort of negligent

misrepresentation.

(a) Increased damages for wrongful dismissal

If an employer choses to supply a reference respecting a former employee, the

employer owes a duty of care to the former employee respecting the content of the

- 5 -

reference. Some courts have found that the duty of care may arise as a term implied in

all employment contracts,6 or by the application of the ordinary principles of negligence.7

Providing a former employee with an inaccurate reference letter can lead to an

increased period of reasonable notice. For example, in Yeomans v. Simon Fraser

University,8 the plaintiff, head of security for the defendant university, brought an action

for damages for wrongful dismissal.

The plaintiff and his wife had attended the security department’s Christmas party where

the wife consumed too much alcohol. Sometime after midnight, the wife saw her

husband kiss another woman. The plaintiff and wife then proceeded to get into a

physical altercation, such that the wife smacked the plaintiff on the face and then was

subsequently pushed or fell through the front door and down three steps. The plaintiff

then wrestled with the wife, trying to get her to their car, and dragged her part of the way

by the collar of her coat.

A woman who witnessed these events filed a complaint with the university. The plaintiff

was subsequently fired. The court found that the statement made by the complainant

was an exaggeration and that the university failed to properly investigate the matter. In

addressing the issue of proper notice the court stated one of the factors to consider was

the difficulty the plaintiff encountered in finding equivalent alternative employment. The

court stated:

…In an answer to an interrogatory, the defendant said that in responding to such enquiries, university personnel were instructed to confirm the plaintiff's employment with the university, confirm or deny any details provided by the plaintiff, indicate that he had been discharged for cause and that the matter was before the courts. I think it reasonable this would impact negatively upon the plaintiff's attempts to find employment, and that I may take that into account in arriving at a proper notice period…

6 Spring v. Guardian Assurance P.L.C., [1994] 3 All O.R. 129 (H.L.) [Spring] (see Goff, L.J. at p. 147); see

also Sapiro v. Leader Publishing Co. Ltd., [1926] 3 D.L.R. 68 (Sask. C.A.) 7 Ibid, (see Lowry, L.J. at p. 152 and Slynn, L.J. at p. 165)

8 [1996] B.C.J. No. 956 (S.C.) at para 54

- 6 -

Given the plaintiff’s age (47), the responsibilities of his management position, the

duration of his employment (over 5 years), and the defendant’s statements to other

potential employers, the court held that a reasonable period of notice was ten months.

Similarly, in Mackie v. West Coast Engineering Group Ltd.,9 the defendant employer

provided a reference letter but in doing so inaccurately described the employee’s

position. The reasonable notice period was assessed at 9 months for the employee,

who was 48 years old and had worked as a middle management employee for 21

months. This is a high notice period that appears at least in part due to the inaccurate

reference provided.

In our experience, sometimes employers issue references that deliberately misconstrue

the reasons for termination. The motivation is often a good faith attempt to be “kind” to

the departing employee. For example, an employer may say “the parties mutually

decided to part ways” when in fact the employer had terminated the employee’s

employment. Although made in good faith, such a statement is nevertheless untrue and

may still result in an employer being exposed to additional liability.

(b) Defamation

The tort of defamation involves the injury to the employee’s reputation. If a reference is

provided, the employer cannot provide any information that would amount to defamation

of the employee.

A defamatory statement is one which has a tendency to injure the reputation of the

person to whom it refers; which tends, that is to say, to lower him or her in the

estimation of right‑thinking members of society generally and in particular to cause him

or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or

disesteem.10

There are several defences to a defamation claim, including:

(a) the comments were true;

9 2009 BCSC 1775 at para 24.

10 WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para 67 [WIC Radio]

- 7 -

(b) absolute privilege;

(c) fair comment; and

(d) qualified privilege.

The defence that has been relied on by employers in the context of statements made in

a reference letter is that of qualified privilege. In Porter v. Tsewultun Police Service

Board,11 the plaintiff police officer was terminated for cause because the defendant’s

Chief Constable, Mr. Kelly, accused her of insubordination, refusal to follow policy, and

discreditable conduct.

The plaintiff was dismissed without being told what accusations were being brought

against her and had no opportunity to respond or deny the allegations. The plaintiff’s

dismissal arose solely because Mr. Kelly recommended her dismissal.

Further, when Mr. Kelly became aware that the plaintiff was applying for employment

with other police forces he initiated telephone calls to the nearby police forces for the

purposes of discouraging them from hiring the plaintiff. The plaintiff brought an action for

wrongful dismissal as well as a claim of defamation against Mr. Kelly.

The Court found that Mr. Kelly’s actions were taken in order to protect his own

reputation as he feared that if the plaintiff was hired by another police force his

judgment with respect to her dismissal would be called into question.

Despite these findings, the Court held that the action in defamation against Mr. Kelly

personally must fail as his communications were protected by qualified privilege.

In order to succeed on the defence of qualified privilege, the defendant must show that:

(a) there is a legal, social or moral duty to make the statement;

(b) the recipient has a corresponding interest to receive the statement;

(c) the statement was made without “malice”; and

11

2000 BCSC 967 [Porter]

- 8 -

(d) the statement was made with an honest belief.12

The Court held that the statements made by Mr. Kelly were protected by qualified

privilege because:

…Mr. Kelly spoke to prospective employers of the plaintiff, as Chief Constable of a police force. He was entitled to tell them of his opinion of the plaintiff as an employee and police officer. His opinion that her employment locally might have reflected badly on his police service may have been correct. I am not persuaded that he spoke to them with malice, or recklessly, or that he intentionally misled any of them, or that he knowingly made false accusations against the plaintiff to them.13

Similarly, in Phutela v. University of Alberta,14 the plaintiff alleged defamation in the

context of a letter of reference from a former employer to a prospective employer. At

trial the judge refused to find malice and found both justification and qualified privilege.

On appeal, the plaintiff argued that the trial judge came to unreasonable conclusions

with respect to two negative comments in the reference letter. One related to the

plaintiff’s previous employment at Lockheed, and the other to previous employment at

the University of California at Berkeley.

In dismissing the appeal, the Alberta Court of Appeal stated that qualified privilege

applied to the letter and that it was a complete answer to the claim. While the appellant

tried to argue that it was inappropriate that the reference letter contained comments

about his previous employment as opposed to his employment with the respondent, the

court held that it “is not inappropriate for an employer to comment on other relevant

facts known to that employer when writing a letter of reference, even though those other

facts did not arise directly from employment with him.”15

12

Whitehead v. Sarachman, 2012 ONSC 6641 13

Pioro at para 75. It should be noted, however, that Mr. Kelly was found personally liable in defamation to the plaintiff for a statement he prepared that was made to the Penelakut Band Chief and its council (not a prospective employer). The court found that this statement was intended to defame the plaintiff and was made with malice. 14

1996 ABCA 370 [Phutela]. The trial judge’s decision is not reported. 15

Phutela at para 8.

- 9 -

Defamation has been made out in at least one Canadian case. In Musgrave v.

Levesque Securities Inc.,16 the plaintiff was terminated from his position as an

investment dealer after four years. Termination was without notice and with no

severance compensation. The plaintiff brought an action in wrongful dismissal and for

defamation. The plaintiff alleged that various statements made by Mr. Peters, manager

of the Halifax branch of the defendant company, were defamatory.

In particular, the plaintiff alleged that a statement made by Mr. Peters to a colleague at

another firm where the plaintiff was under consideration for a position were defamatory.

When asked by the plaintiff’s colleague how the plaintiff had gotten along at the

defendant company, Mr. Peters told the colleague that the plaintiff had not met

performance expectations and that he had been the subject of an investigation by the

Investment Dealers Association (IDA). The plaintiff’s performance was found to be at

least average and the IDA investigation had been dismissed as the evidence did not

disclose any violations on the part of plaintiff. Mr. Peters was aware of this but did not

qualify his statements to the colleague.

The plaintiff alleged that as a result of this conversation, the prospective firm changed

its mind about hiring him. The Court held that the statements to the colleague were

defamatory and that the defendant breached its duty to act in good faith and to deal

fairly with the plaintiff in the manner of his dismissal. Having found that the defendant

engaged in acts of extreme bad faith, the court awarded damages for defamation,

however was concerned with double compensation.17 The plaintiff was awarded

$20,000 for defamation, and received an extended notice period of sixteen months.

(c) Negligent Misrepresentation

There is a possibility that a former employer who has provided a false letter of reference

could be liable to a future employer if the employee for negligent misrepresentation. In

order to make out the tort of negligent misrepresentation the future employer would

need to establish that:

16

(2000), 183 N.S.R. (2d) 349 (S.C.) 17

Ibid at para 75

- 10 -

(a) a duty of care based on a special relationship between the former

employer and the future employer;

(b) the representation in question must be untrue, inaccurate, or misleading;

(c) the former employer must have acted negligently in making said

misrepresentation;

(d) the future employer must have relied, in a reasonable manner, on said

negligent misrepresentation; and

(e) the reliance must have been detrimental to the future employer in the

sense that damages resulted.

Queen v. Cognos Inc., [1993] 1 S.C.R. 87 at para 33 (adapted to employment context)

While actions by future employers against former employers for misrepresentation in

reference letters are not known in Canada, there are decisions that suggest such a

claim may not be beyond the pale.

In the decision of The Treaty Group Inc. v. Drake,18 the Treaty Group retained Drake, a

global personnel and training firm, to assist in filling an office position. Drake was

retained to find the best possible candidate and to provide the “highest calibre of

professional screening, evaluation and reference-checking”.19

Drake referred an employee, Mrs. Simpson, to the Treaty Group, which eventually hired

her to assist with booking and administrative tasks. Mrs. Simpson worked for the Treaty

Group for two years and was responsible for bookkeeping generally, doing bank

reconciliation, processing and issuing cheques and paying accounts. During her

employment Mrs. Simpson defrauded the Treaty Group of $263,324.20.

Mrs. Simpson had been twice criminally convicted of defrauding former employers prior

to joining the Treaty Group. Mrs. Simpson was criminally convicted and the Treaty

18

[2005] O.J. No. 5232 aff’d 2007 ONCA 450 19

Ibid at para 22

- 11 -

Group obtained a civil judgment against her and her husband. The Treaty Group also

brought an action against Drake for breach of contract, negligent misrepresentation and

negligence to recover the monies stolen and other damages associated with lost profits.

In addition to finding that Drake was liable for breach of contract, the Ontario Superior

Court also found Drake liable for negligent misrepresentation and negligence for its

failure to conduct reference checks on Mrs. Simpson or investigate Mrs. Simpson’s

background. In regards to the claim for negligent misrepresentation the Court held that

based on the representations contained in Drake’s fee schedule about its calibre of

service the Treaty Group relied on such misrepresentations to their detriment. Similarly,

by failing to conduct the necessary reference checks Drake was found to have

breached the standard of care and accordingly was liable in negligence.

This analysis has also been applied to credit reporting agencies.20 The Ontario Court of

Appeal has stated that credit reporting agencies, in making statements about

consumers, knowing that third parties are going to rely on those statements, assume

responsibility for the contents of those statements. Similarly, when the previous

employer provides a reference to a prospective employer in respect of a former

employee, it is plain that the prospective employer relies upon the former employer to

exercise due skill and care in the preparation of the reference before making it

available.

While not involving a letter of reference, these decisions reinforce the general principles

of negligent misrepresentation. In the author’s view, a reference letter containing a

misrepresentation and provided to the employee directly and used by the employee

usually would not be sufficient to attract liability from third parties as there would be

issues about duty of care, proximity, reasonable foreseeability, and reasonable reliance.

That said, it is not possible to wholly rule out that a former employer would not be liable

for misrepresentations in a reference letter.

D. Privacy Issues

20

Haskett v. Equifax Canada Inc., [2003] O.J. No. 771

- 12 -

Privacy issues for private sector employers continue to be more regulated in B.C. and

Alberta, the two provinces with personal privacy legislation. In those provinces, a private

sector employer who collects, uses or discloses personal information about employees

or job applicants has to comply with privacy legislation, such as B.C.’s Personal

Information Protection Act.21

The Office of the Information and Privacy Commissioner (“OIC”) has released a best

practices guide to PIPA and the hiring process.22 What follows is a brief review of some

of the key points related to reference checks and privacy issues.

Assume the job applicant’s consent for contact with listed references - an

applicant who has listed references implicitly consents to you contacting listed

references, but only so you can collect reference information that is reasonably

related to the job requirements.

When an employer does a reference check on a job applicant, it is a good

practice to first confirm that the applicant has authorized the referee to talk to

you.

In BC, PIPA requires that employers give notice to job applicants in advance that

you intend to conduct background checks or make informal inquiries about the

job applicant with former employers who are not listed as references.

Is the information received from the referee confidential?

o While this issue has not been specifically determined in relation to BC’s

PIPA both the federal and Alberta privacy commissioners have issued

decisions confirming that a third party’s opinion about an individual is the

individual’s personal information.

21

S.B.C. 2003, c 63 (PIPA) 22

OIC, PIPA and the Hiring Process (Online). April 10, 2006, Available: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.oipc.bc.ca%2Fguidance-documents%2F1444&ei=byg7U8H0GYThyQHhkIDIAg&usg=AFQjCNGF5fkcIF8keay-sn_4mFgxs57jCA

http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.oipc.bc.ca%2Fguidance-documents%2F1444&ei=byg7U8H0GYThyQHhkIDIAg&usg=AFQjCNGF5fkcIF8keay-sn_4mFgxs57jCA



- 13 -

o Our recommendation is to assume that referees’ opinions about a job

applicant are the applicant’s personal information. As such, an employee

may have access rights which require a future employer to disclose to the

employee the identity of a referee.

o Decisions of the OIC in relation to the Freedom of Information and

Protection of Privacy Act,23 have held that referees’ identities can be

withheld if given in confidence.

In Ontario, the Freedom of Information and Protection of Privacy Act applies to

provincial ministries and most provincial agencies, boards and commissions, as well as

community colleges, universities and hospitals. FOIPPA requires that the government

protect the privacy of an individual’s personal information existing in government

records. If an individual feels his or her privacy has been compromised by a public

institution governed by FOIPPA, he or she may complain to the Information and Privacy

Commissioner, who may investigate the complaint.

E. Practical Tips

Our top 10 tips for references are:

1. Offer A Reference: We recommend offering the employee a reference for several

reasons:

If the employee accepts the offer, an employer knows they have consent to

provide the reference;

The offer sets the employer up as an ally. It is less probable an employee will

bring an action against a potential reference.

The offer shows good faith and professionalism. Both look good before a

court.

23

R.S.B.C. 1996, c. 165

- 14 -

A reference will help an employee get a new job. Getting a new job mitigates

a potential damages claim.

2. Copy The Employee: We recommend providing the reference directly to the

employee, or at least a copy of the reference to the employee. This allows the

employee to know what is being said about him or her. It forestalls potential

claims for defamation and allows the employee to decide to what extent they

should use the employer as a reference.

3. Centralize: We recommend that an employer designate one person or group to

handle all references on behalf of the organization. This prevents an ad hoc

approach to references. It also ensures that an errant manager does not make a

statement that will attract liability for the organization as a whole.

4. Do Not Leverage: We recommend that, at a bare minimum, all employers offer to

provide without precondition employment verification letters. These letters list

facts that are objectively discernable and do not contain subjective opinion.

Employment verification facts usually include: [a] start date; [b] end date; [c] title;

and [d] duties in position. Privacy legislation in BC and Alberta entitles

employees to access their employment verification information which makes

provision of this information inevitable anyway. We recommend against making a

release or agreement to a settlement a pre-condition of providing the reference.

Courts will usually see this as an employer exerting improper economic pressure

to force the employee to unduly compromise his or her claim. This type of

behaviour is likely to be labelled bad faith and create additional liability for the

employer.

5. Be Consistent: We recommend employers decide in advance when they will

issue references that are more extensive than mere employment verification.

Possible policy choices are:

Never issue a reference beyond employment verification: This approach

avoids issues of misrepresentation and defamation, however it does not

- 15 -

materially assist an employee get a new job and accordingly increases the

risk of litigation for wrongful dismissal and damages due to a lack of

mitigation.

Always issue a comprehensive reference: This approach potentially

minimizes the risk of litigation and it reduces potential damages by increasing

the likelihood of mitigation. This approach increases the risk of a defamatory

statement being printed and of misrepresenting the employee’s abilities. This

approach is difficult to follow if the employee is a poor performer.

Issue a comprehensive reference where applicable: This is our favoured

approach. It allows an employer to obtain the benefits of a positive reference

where circumstances permit. Otherwise, it still provides for the employment

verification letter.

6. Quote Yourself: We recommend where some performance factors are in issue, to

avoid arguments over subjective perceptions (e.g. was this a “good” employee?),

that employers quote prior performance reviews. For example, an employer

could say “on the last performance review, John Doe scored a 5 out of 5 for

initiative, which is out highest rating.”

7. Do Not Mislead, Including By Omission: As a corollary to the above point, we

recommend that an employer not deliberately create a false impression, including

by omission. Using the example above, if the employee scored 5 on initiative,

and 1 on everything else, it is not appropriate to reference the strong initiative

score to create the impression of a strong performer. This paper’s title is another

example of a misleading reference.

8. Use Written References for Verbal References: We recommend that employers

use the written reference as a script for verbal references. This prevents

digression into other areas which could lead to liability. If a future employer is

seeking to go beyond the four corners of the reference, we suggest asking for

- 16 -

express written consent from the employee, including a waiver of liability, with

respect to disclosure of additional personal information.

9. Consider Waiver and Consent: Attached at Schedule “A” is a sample letter that

an employer could use to ensure full consent and a release of liability in

exchange for providing a reference.

10. Communicate: As with other policies, we recommend that an employer

communicate its reference policies in advance to its employees. An employee

should know before they leave the company under what circumstances they will

receive a reference, and what form that reference can be expected to take.

F. Conclusion

A reference can be a powerful tool for an employer to effectively manage the departure

of an employee from the organization. By carefully controlling the reference process an

employer can preserve (or even generate) goodwill, minimize potential liability from the

termination, and ensure that a Court perceives it as acting fairly and not abusing its

power over a vulnerable employee.

- 17 -

SCHEDULE “A” - SAMPLE LETTER

AUTHORIZATION TO PROVIDE REFERENCE

I, _____________________________ [print name], hereby authorize and give my consent to <<company name>> (“Company”) to provide, through a representative of the Company’s choosing, a work reference about me (“Reference”) to third parties. The Reference may be given in writing, verbally, or both.

I acknowledge and give my consent that the Reference may include without limitation the Company’s subjective opinion of my work performance and character, and the disclosure of employee personal information (as that term is defined in the B.C. Personal Information Protection Act) collected by the Company about me.

In consideration of the Company providing an employment reference, I agree not to file or pursue any complaints, claims or legal actions against the Company or any of its directors, officers, employees, representatives, or agents arising out of or in any way related to the provision of the Reference.

DATED on _________________, 2014.

WITNESS: ______________________ (Signature) __________________________ (Print Name)

) ) ) ) ) ) )

________________________________ [signature]

Cross Country Check-Up:

Recent Developments

in Canadian Employment Law

1


Presented by Michael Richards

ONTARIO UPDATE:Recent Developments from the Centre of the Universe

News From the Regulatory and Legislative Front

• Effective July 1, 2014, Ontario employers were required to ensurethat all workers and supervisors covered by the Occupational Healthand Safety Act receive mandatory health and safety awarenesstraining

• Employers must display the MOL’s poster (in English and the majoritylanguage of the workplace) summarizing the health and safety rightsand responsibilities of workers, supervisors and employees

• The MOL provides resources and tools to assist employers incomplying, including workbooks and employer guides an e-trainingmaterials.

Mandatory Health and Safety Training Requirements

2

Employment Standards Act, 2000

• Minimum Wage went up to $11.00 per hour, effective June 1, 2014.Finally, we catch up with Nunavut!

• Former Bill 146 (now introduced as Bill 18) proposes to (among otherthings):

• remove the current $10,000 cap on the recovery of wages owed throughthe MOL order to pay;

• increase the time limit for recovery of wages from 6 to 12 months;

• require employers to provide a handout to employees containinginformation about their rights under the ESA

Accessibility for Ontarians with Disabilities Act

• In 2013, the Accessibility Directorate of Ontario commenced enforcementactions against companies that failed to file accessibility reports by theDecember 12, 2012 deadline.

• Under the Integrated Accessibility Standard, as of January 1, 2014,companies with 50 or more employees in Ontario must:

• develop and implement accessibility policies

• develop and implement a multi-year accessibility plan describing how thecompany will achieve accessibility and compliance with the Integrated Standards;

• post the accessibility plan on the company’s website;

• ensure that new internet websites meet certain technical accessibilityrequirements

“Oh no you didn’t!”Punitive Damages

3

Pate Estate v. Harvey (Township), ON CA 2013: $450,000 in punitive damages

• Township terminated Pate for cause for alleged discrepancies in buildingpermit fees. Township also pressured the OPP into charging Pate criminally.

• Pate was acquitted of all charges at trial, then sued the Township for wrongfuldismissal, malicious prosecution and reputational injuries.

• Trial judge found that the Township’s official knowingly withheld exculpatoryevidence from the OPP which would have kept them from charging Pate

• Court of Appeal found punitive damages award appropriate and confirmedthat purpose of punitive damages was “retribution, deterrence anddenunciation”

“So a Resort Pool Isn’t a Workplace After All? Bummer.”

Accident Report Obligations under OHSA Clarified

• Blue Mountain Resorts v Ontario (Ministry of Labour and LabourRelations Board), ONCA 2013

• Blue Mountain guest tragically drowned in resort pool

• Ministry of Labour learned about death during a routine MOL inspection andissued an order under the OHSA to Blue Mountain for failing to report the fatalityas a workplace fatality

• Court of Appeal held that requiring employers to report all critical injuries andfatalities suffered by any person in a workplace would result in extending theOHSA and the MOL’s powers beyond what was necessary to protect workersafety and would produce absurd results (no kidding!)

• Court holds that there has to be a “reasonable nexus to a realistic risk to workersafety”

4

“Everybody’s Doing It!”

First Human Rights Damages Award by Ontario Court: Wilson v. Solis Foods, ONSC 2013

• Wilson was employed by Solis Foods for 16 months when she wasterminated without cause because of alleged restructuring.

• Wilson sued for wrongful dismissal. She also claimed that her ongoing backproblems and requests for accommodation were a factor in Solis’ decisionto terminate her.

• Court awarded Wilson 3 months’ pay for the wrongful dismissal and $20,000for Solis’ violation of Wilson’s human rights and failure to accommodate.

• This case may encourage other employees to bring human rightsallegations to the civil courts, particularly because the civil courts can awardcosts while the Ontario Human Rights Tribunal cannot…

THANK YOU!

Michael Richards

Partner, Toronto and Vancouver

416.941.5395 | 604.643.2919

[email protected]

Follow us @DavisLLP

1

Recent Developments in Employment and Labour Law

The Canadian Prairies

Presented by Wendy-Anne Berkenbosch

Saskatchewan

Saskatchewan Employment Act, SS 2014, c S-15.1

• Modernizes, simplifies, and amalgamates legislation governing:

• Employment Standards

• Occupational Health and Safety

• Radiation Health and Safety

• Labour Relations

2

Saskatchewan Employment Act, SS 2014, c S-15.1

• Flexible hours: eight hours per day for five days perweek or 10 hours per day for four days per week

• Leave of absence: qualification period for maternity,parental, and adoption leave reduced from 20 weeks to13 weeks of service

• Increased fines: up to $50,000 for violating labourstandards and up to $1.5M for violating occupationalhealth and safety standards

Manitoba

Personal Information Protection and Identity TheftPrevention Act, CCSM c P33.7

• The Act will apply to private sector organizations thatoperate in the Province of Manitoba and collect, use,and disclose personal information (including personalemployee information)

• Organizations subject to the Act are responsible for thepersonal information that is in their custody or undertheir control

• “Public bodies" will continue to be governed by theFreedom of Information and Protection of Privacy Act

3

Alberta

Alberta (Information and Privacy Commissioner) v UnitedFood and Commercial Workers, Local 401, 2013 SCC 62

• The Supreme Court of Canada unanimously held thatAlberta’s Personal Information Protection Act infringedthe right to freedom of expression by limiting the abilityof labour unions to videotape and photographindividuals crossing a picket line

• The Supreme Court suspended the declaration ofinvalidity for 12 months to give Alberta’s Legislature theopportunity to revise the Act

• Deadline = November 15, 2014

Unifor, Local 707A v. Suncor Energy Inc. (Arb Brd)

• In a 2-1 split arbitral decision, the Panel ruled againstthe imposition of a random drug and alcohol testingpolicy at Suncor’s oil sands operations in northernAlberta.

• Suncor has asked the Alberta Court of Queen's Benchfor a judicial review of the ruling.

4

Telecommunications Inc. v. TelecommunicationsWorkers Union, 2013 ABQB 355

• “I take the Union’s point that not every illness thatrequires an employee to miss work will render thatemployee entirely incapacitated. One likely would notquarrel with an employee who missed work because ofillness but got out of bed to read or watch television.Nevertheless, I am of the view that the conclusion thatan employee who is too sick to work could still pitch in abaseball game defies logic and common sense.”

Telecommunications Inc. v. TelecommunicationsWorkers Union, 2013 ABQB 355

• “Further, while I can appreciate that attending atcustomers’ homes and businesses while suffering fromdiarrhea might carry with it some awkwardness, itseems to me unreasonable to conclude that theproblem could be so severe as to merit missing work,yet be manageable from the pitcher’s mound.”

THANK YOU!


Partner, Edmonton

780.429.6810

[email protected]

Follow us @DavisLLP

1

Québec Update


1

Boulad v. 21008805 Ontario Inc.

• Claude Boulad was a manager at a Hilton hotel located in Montréal. When the hotel was sold to Westmount Hospitality Group (“Westmount”) in 2006, he remained in his position and continued on under the supervision of the new employer.

• In 2009, Westmount sold the hotel to Jesta Group (“Jesta”), a small company that owned two hotels in the South of France.

2


• Boulad informed the Vice-President of Operations at Westmount that he refused to pursue his career with Jesta.

• He criticized the lack of name recognition of the company and the company’s lack of experience in the hotel industry.

• He claimed that holding a position with Jesta would hinder his professional development.

3

2


• Boulad claimed that he was constructively dismissed from his position with Westmount.

• Constructive dismissal or resignation?

• Would a reasonable person, placed in the same circumstances, have considered the offer of the employer to be unacceptable because it constituted a substantial modification to an essential condition of the employment contract?

4


• The Superior Court of Quebec concluded that the unilateral decision of Westmount to sell the hotel to Jesta deprived Boulad of the advantages that had been available to him as an employee of Westmount.

• This constituted a substantial modification of an essential condition of his employment contract.

5


• The Court concluded that Boulad was constructively dismissed. His refusal to accept Westmount’s decision was justified given that he had not received an offer of an equivalent position or reasonable notice.

• Given his 22 years of service, Boulad was awarded 24 months pay in lieu of notice.

6

3


• Impact of this decision: Caution must be exercised regarding the transfer of employees upon the sale of a business.

• This decision has been appealed. We will keep you posted on the developments in this case.

7

Dollo v. Premier Tech Ltée

• Dollo was Vice-President, Finance of Premier Tech.• He participated in Premier Tech’s stock option plan.• In 2010, his position was terminated.

• The stock option plan contained a clause granting the Board of Directors discretion with regard to unexercised, vested stock options.

• The Board of Directors refused to allow Dollo to exercise his vested options.

8


• The question before the court was whether or not a clause contained in a stock option plan that has the effect of preventing a terminated employee from exercising his options is abusive.

9

4


• The Court concluded that the clause was abusive within the meaning of art. 1437 of the Civil Code of Québec.

• The Court found that Premier Tech’s conduct was oppressive as per the Canada Business Corporations Act.

• This decision has been appealed. We will keep you posted on the developments in this case.

10

THANK YOU!

Pablo GuzmanPartner, Montreal

[email protected]

11

1

THE NORTH

Overview from theNorthwest Territories

and Nunavut

Presented by Cynthia J. Levy

Legislative Framework

• Northwest Territories and Nunavut are legal and political entities created by federal legislation

• legislative assemblies have law-making powers similar to provinces but in narrower sphere of activity

• operate as consensus governments without political parties

• members are elected to represent constituencies; elected members select speaker, premier and cabinet; remainder known as “regular members”

• territorial legislation applies where powers devolved and legislation enacted

• federal legislation applies otherwise

Labour Relations

• Northwest Territories and Nunavut do not have own labour relations legislation

• Canada Labour Code applies to certification of unions and collective bargaining

• City of Yellowknife v. Canada (Labour Relations Board) – Supreme Court of Canada decided that federal legislation applied to organization of municipal workplace

• specific territorial statutes apply to public sector collective bargaining at territorial government level

• most active union is Public Service Alliance of Canada

2

Employment Standards

• territorial legislation displaces provisions of Canada Labour Code

• Northwest Territories: Employment Standards Act

• Nunavut: Labour Standards Act

• statutes are similar but not identical due to significant amendments in both territories since division in 1999

• provisions are comprehensive and generous to employees

Workers Compensation

• Workers’ Compensation Act

• new legislation enacted in 2008 for both territories

• Workers’ Safety and Compensation Commission of the Northwest Territories and Nunavut serves both territories

• recent amendments to legislation and regulations include presumptions in favour of firefighters and more comprehensive safety regulations

Human Rights

• Northwest Territories: Human Rights Act

• Human Rights Commission works to prevent discrimination

• Office of the Director of Human Rights processes and attempts to resolve complaints

• Human Rights Adjudication Panel conducts hearings into complaints

• comprehensive review of legislation and practices currently underway considering restorative rather than legalistic approach to complaints

• frequent grounds of complaint include physical disability, sexual orientation, social condition, and family status

• most complaints relate to employment, public services, and housing

3

Human Rights

• Nunavut: Human Rights Act

• direct access model

• staff provide public information and assist parties in completing notifications

• Human Rights Tribunal reviews all complaints and makes all decisions

• frequent grounds of complaint include disability, race, lawful source of income, and family status

• most complaints relate to employment matters or job competitions

THANK YOU!

Cynthia J. Levy

Associate, Yellowknife

867.669.8402

[email protected]

Follow us @DavisLLP

1

Family Status Discrimination – What’s the Scoop?


Presented by Allen Soltan & Veronica Manski

Overview

1. What does “family status” discrimination (“FSD”) mean?

in BC?

elsewhere in Canada?

2. How may FSD be interpreted in the future?

3. Implications for employers regulated by BC law

1

1. What does FSD mean?

• Discrimination in employment on various grounds including “family status” is prohibited by BC Human Rights Code (the “Code”)

• “Family status” added to Code in 1992

2

2


• Legislatures have taken different approaches to “family status” in Canadian human rights legislation

family status defined narrowly as parent-child

relationship

family status defined as state of being related by

blood, marriage or adoption

family status undefined

SK, ON, NS, PE & NL

AB & NU BC, NT, YK, MB & Fed’l

3


• At the very least, “family status” means the status of being a parent, and responsibilities that may flow from this status (i.e., childcare responsibilities)

• “Family status” under BC law could conceivably also mean responsibilities owed to other “family members” (including same-sex and unmarried couples)

4


• FSD could be engaged by:

inequality of employee benefits, such as parental or bereavement leave

facially neutral employment requirements that may discriminate against parents with particular family responsibilities (e.g., scheduling requirements)

termination linked to family status

5

3


• Jurisprudence

a) B. v. Ontario (2002, SCC)

• Family (and marital) status includes discrimination based on: “absolute status” (i.e., membership in an identifiable group

such as ‘married’ or ‘single’); and

“relative status” (i.e., the particular identity of a person’s spouse or child)

6


• Facts: employee terminated when his daughter and wife made sexual abuse allegations involving his daughter against an owner of the employer; employee had worked for employer for 26 years and was four years away from retiring with full pension; employee complained of FSD

• Result: SCC upheld Tribunal decision finding FSD; FSD encompasses discrimination resulting from identity of complainant’s family member; employee dismissed because of his marital or familial affiliation

7


• Implication: can’t discriminate against an employee because they are related to particular person (in this case by blood and other familial relationship)

b) Health Sciences Assn. of B.C. v. Campbell River and North Island Transition Society (2004, BCCA) is the leading BC case

• Test: “prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantialparental or other family duty or obligation of the employee.”

8

4


• Facts: female employee with four children, one of whom had extensive special needs and a psychiatric disorder; she provided care to her children after school; employer unilaterally changed her work hours affecting her ability to care for her son; grievance alleged FSD

• Outcome: amounted to FSD; the care employee provided to her son after school was a “substantial parental obligation”, and changing employee’s hours of work “was a serious interference with her discharge of that obligation”

9


• Campbell River appears to limit FSD to cases where employer has imposed a change

• Interprets “serious interference” and “substantialobligation”

Tends to require an employee’s family responsibilities to be extraordinary or unusual

10


• “Substantial obligation” appears to have potentially broad application as it could involve any “parental or other family duty or obligation of the employee”; but Court in Campbell River said “in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a … case”.

11

5


• Campbell River is seen by academic commentators as:

Treating family status as secondary to other protected grounds of discrimination

Setting too high a burden on complainants

Too restrictive

• Campbell River has not been followed in many other jurisdictions

12


c) CNR v. Seeley & Johnstone v. Canada (Border Services) (2014 FCA)

• Federal Court of Appeal (“FCA”) has not followed Campbell River, choosing to develop its own approach to FSD

• In Seeley and Johnstone, employers failed to accommodate mothers who requested relief from work schedule or assignment that interfered with childcare obligations

13


• In Seeley and Johnstone, FCA said:

Test for finding prima facie FSD should be substantially the same as that which applies to other enumerated grounds in human rights legislation

Human rights law protects “needs” (not “preferences”) and an individual’s “immutable or constructively immutable characteristics”

14

6


Consequently, types of childcare obligations contemplated by “family status” must have an immutable or constructively immutable characteristic

• As a result, childcare obligations at issue are those which a parent cannot neglect without engaging legal liability

15


• Voluntary family activities, such as family trips and participation in extracurricular sports, do not have this immutable characteristic, since they result from parental choices rather than parental obligations

16


FCA established four-part test for prima facie case of FSD:

Employee must have a parental obligation to a child

Employee’s obligation must engage legal responsibilities to child (as opposed to a personal choice)

Employee must have made reasonable efforts to meet childcare obligations through reasonable alternative solutions

Workplace rule causes more than trivial or insubstantial interference with employee’s childcare obligations

17

7

2. How may FSD be interpreted in the future?

• Implication: At least in the federal context, FSD may apply where employer has not imposed a new term or condition of employment

• Federal Court of Appeal jurisprudence may eventually influence the law in BC (but, for now, Campbell River is the law)

18


• Employers

May be found liable for discrimination for imposing a change in term/condition of employment which results in serious interference with a substantial parental or other family duty or obligation of employee

Should consider carefully employee requests for accommodation on basis of family status

Need to continue to adapt to changing family-based needs of employees

19


• Cannot ignore employees’ competing duties to their families

• Remains to be seen whether Campbell River approach will continue to be followed in the long-term, be overtaken by FCA approach, or whether some other approach will evolve (SCC may need to decide)

20

8


• Employers should:

Consider requests for accommodation with an open mind

Take requests seriously

Determine what accommodation measures may be possible and would not cause “undue hardship” to employer

Decide whether to approve or deny request (or suggest another alternative)

be reasonable/flexible

21


• There may be benefits to being flexible:

accommodation measure may be temporary

may help maintain goodwill

may improve productivity

may result in more inclusive workplace

may enhance employee engagement/retention

22

THANK YOU!

Allen SoltanPartner

604.643.2970

[email protected]

Follow us @DavisLLP

Veronica ManskiArticled Student

604.643.6458

[email protected]

1

Working Outside the Act

Averaging Agreements, Variances, and Exclusions to the Employment Standards Act

Presented by Mike Hamata

Flexibility, Efficiency, and Cost

• Shift work is a familiar part of large projects

• Driven by market pressures

• Variances, Averaging Agreements, and Exclusions to the Act can provide improvements to:

• payroll cost

• human resources efficiency

• scheduling flexibility

for all employers

Statutory Constraints

2

Minimum Requirements

• “Decent” working conditions

• Enough time away from work to participate in society

• Provincially regulated employees

Minimum Requirements

• Hours of work and overtime

• 8 hours free from work between shifts

• 32 hours free from work each week

• No “excessive hours”

Averaging Agreements

3

About Averaging Agreements

• No overtime when less than 40 hours per week

• Applies to an individual employee

About Averaging Agreements

• Shifts of less than 12 hours

• One to four weeks

• 8 hours between shifts

• 32 hours free from work

• Statutory holidays

How to obtain an averaging agreement

• Must be in writing

• Number of weeks

• Number of times it may be repeated

• Start and end date

• Employee gets a copy

4

Advantages

• Longer shifts, never more than 40 hours in a week

• Single employee

• Immediate

Disadvantages

• Only applies to daily overtime

• Only applies to a single employee

• No build up

Variances

5

About Variances

• Applies to more provisions of the Act

• Applies to multiple employees

• Branch is generally pro-business

How to Obtain a Variance

• Must apply to the Director

• Must be consistent with the intent of the Act

• Effect on all employees

Advantages

• Large group of employees

• Build up

• Decertification

6

Disadvantages

• Approval of the Director

• No Excessive hours

Exclusions

About Exclusions

• Character of Occupation

• Character of Industry

• Character of Individual

• Whatever the Government feels like

7

Conclusion

• Averaging Agreements, Variances, and Exclusions

• Cost, Flexibility, and Efficiency

• Benefits to employers and employees

• Paper and Reference Chart

THANK YOU!

Mike Hamata

Associate, Vancouver

604 643 2942

[email protected]

Follow us @DavisLLP

Davis: 17173589.1

Working outside the Employment Standards Act: Variances, Averaging

Agreements, and Exclusions

Mike Hamata

October 2014

Introduction

Flexible shift work schedules are a familiar part of large-scale infrastructure and

resource projects in British Columbia. In those industries, it is common for employees to

work for several weeks, followed by a week off, work 10 or 12 hour shifts, or work some

other nonstandard schedule. However, as more employers look for ways to lower

payroll costs and improve flexibility, demand for flexible shift scheduling is increasing

across many industries, a trend which is gaining momentum and will continue for the

foreseeable future.

The reasons motiving non-standard work schedules are myriad, but often include time

and cost pressures on employers. For example, market pressures may demand that a

project is complete before price changes make the project uneconomic. Employers

often compete for skilled employees from out of province, who may prefer the

compensation benefits offered by many consecutive days of work, and longer breaks to

return home. Finally, capital-intensive equipment can be better utilized when projects

are completed quickly, allowing employers to be more efficient.

Providing the right kind of labour and employment scheduling requires good planning -

in the non-union context, those arrangement are often in tension with many provisions

of the Employment Standards Act, including provisions setting out maximum hours of

work per week, overtime provisions, minimum amount of time free from work per week,

and other rules that provide limits to shift scheduling. However, there are several tools

within the Act that can provide significant flexibility - variances, averaging agreements,

and exclusions - and are available to all employers in British Columbia.

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Davis: 17173589.1

Default Requirements

Employment standards legislation was introduced into most commonwealth jurisdictions

- including British Columbia - following the Second World War. Philosophically, the

Employment Standards Act is legislation designed to protect workers from exploitation

and to provide for working conditions that are “decent”. With regards to scheduling and

hours of work, the purpose of the Act was to ensure that no worker should be required

“… to work so many hours that he or she is effectively denied a personal or civic life.”1

The Act provides the minimum terms for all contracts of employment for workers under

provincial jurisdiction (similar legislation exists for federally regulated industries).

Employers and employees are free to negotiate contracts that exceed the protections of

the Act, and most do - wages, for example, commonly exceed the minimum standards

set in the Act.

Part 4 of the Act governs scheduling hours of work and overtime. Section 35 of the Act

provides that a standard work day is 8 hours, a standard work week is 40 hours, and if

an employee works in excess of those hours, that employee will earn overtime, in

accordance with the provisions of s. 40 of the Act - namely, 1.5 times an employee’s

regular wage for hours worked in a day in excess of 8 hours and twice an employee’s

regular wage for each hour after 12. Employees also earn 1.5 times their regular wage

for any hours worked in excess of 40 hours a week.

The Act requires that employees have 8 hours free from work between shifts, and 32

consecutive hours free from work each week. Section 39 of the Act prohibits employers

from either requiring or allowing employees to work “excessive hours”. The Act is silent

on what constitutes “excessive hours”.

That Act is designed with the nine to five, 40 hour work week as the archetype for what

it means to have “decent” working hours. Increasingly that arrangement runs into

conflict with both employers and employees demanding more scheduling flexibility.

1 Canada, Commission on the Review of Federal Labour Standards, Fairness at Work: Federal Labour

Standards for the 21st Century by H. W. Arthurs (Ottawa: Commission on the Review of Federal Labour

Standards, 2006) at 47.

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Davis: 17173589.1

Averaging Agreements

Averaging agreements allow employers to average hours so that over a set period, the

average hours worked do not exceed 40 per week. An employee can agree to average

the number of hours worked over a fixed period of up to four weeks.

Requirements for averaging agreements are set out in detail in s. 37 of the Act, and are

summarized below:

Each averaging agreement applies only to a single employee;

If the employee and employer agree, averaging agreements allow for employees

to work up to 12 hour shifts without the employer having to pay overtime,

provided that on average, the total number of hours worked in a week does not

exceed 40;

Hours can be averaged over a period of one, two, three or four weeks;

Employees must still have a minimum rest period between shifts of 8 hours and

32 consecutive hours free from work;

The 32 hours free from work are calculated over the period of the averaging

agreement. An averaging agreement over four weeks may have one 32 hour

period free from work each week, all four 32 hour periods consecutively in the

four weeks, or some combination thereof;

Overtime applies for daily time worked in excess of the averaging agreement,

weekly time worked beyond 40 hours, or failure to provide 32 hours free form

work. Double time applies for daily hours beyond 12; and,

Employees working pursuant to averaging agreements remain eligible for

statutory holiday benefits.

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Davis: 17173589.1

How to obtain an Averaging Agreement

The Act requires that averaging agreements be in writing. That is not only a requirement

but is also good practice - in the event of a challenge to the validity of an averaging

agreement, for example in the case where an employee claims he is owed overtime

wages. The written agreement must include the number of weeks over which overtime

will be averaged, the number of times the agreement may be repeated, and the start

and end date for the averaging agreement. The request must be signed by both the

employer and the employee.

The affected employee must receive a copy of the signed averaging agreement before

the period specified in the agreement begins, and employers must keep their copy of

the agreement for at least two years. Averaging agreements cannot be retroactive.

As with any other contractual agreement, employers should ensure that employees

enter into averaging agreements fully informed of their legal rights and responsibilities,

and satisfied with the arrangement, in order to prevent future claims that such an

agreement was signed under duress or coercion.

Advantages and Disadvantages of Averaging Agreements

Averaging agreements are useful where a particular employee agrees to work several

longer shifts in exchange for more time off at some point during the course of the

agreement, and on average, the employee never works more than 40 hours weekly.

They are also useful because they do not require approval from the Director of the

Employment Standards Branch, and can be made between employer and employee

alone. As a result they are faster to obtain than variances.

Averaging agreements are less useful where many employees will be subject to the

working schedule, or where there is a planned build-up of employees over time,

because each employee must have their own agreement. Averaging agreements also

only apply to daily overtime, so if there are other provisions of the Act which are

preventing a desired shift schedule, then a variance will be required.

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Davis: 17173589.1

Variances

Variances allow employers to seek arrangements outside the traditional structure of the

Employment Standards Act for a large number of employees. Variances provide for a

wholesale reprieve from the particular requirements of the Act, at the discretion of the

Director of the Employment Standards Branch. In our experience, the Branch is pro-

business with respect to variance applications, especially where a large number of jobs

are at stake.

Variances are governed by s. 72 of the Act, and can apply to more than just overtime.

Variances are available to modify the statutory requirements relating to:

Maximum daily and weekly hours of work and overtime;

Weekly and daily hours free from work;

Minimum daily hours of work;

Timing of pay days;

Special clothing;

Split shifts;

Notice and pay provisions for group terminations under the act; and,

The number of weeks in an averaging agreement.

The policy rationale underlying variances is that in many circumstances, “decent”

working hours can be achieved outside the archetypical 40 hour work week. Because a

broader range of flexibility is provided, that flexibility is more closely monitored by the

Director of the Employment Standards Branch.

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Davis: 17173589.1

How to Obtain a Variance

The mechanics for applying for a variance are set out in s. 30 of the Employment

Standards Regulation. To apply for a variance, an employer must make a request in

writing to the Director of the Employment Standards Branch. That letter must:

Describe the details of the variance requested;

Be signed by a majority of employees that will be affected by the variance,

indicating their approval of the proposed variance; and,

List the name and home phone number of each employee who signs the

variance.

A variance must be consistent with the intent of the Act. In each case, the Director must

determine whether the variance will provide a benefit to the affected employees

consistent with the purposes of the Act. Further, the Director must also take into

account potential for a variance to affect all employees in the Province. It’s possible to

involve the Branch on a voluntary basis at an early planning stage, and it’s often a good

idea to do so.

In Hermit Holdings Ltd., BCEST #D380/98, the employer applied to vary the

requirement that all employees be paid for at least 4 hours of work. The employer

sought to vary the minimum number of hours to 2 in all circumstances, which the

employer said was necessary in order to be able to hire additional employees. The

Director refused the variance, finding that it was not consistent with the purposes of the

Act:

Variances to the Minimum Daily Guarantee, like all variances, must be

consistent with the intent of the Employment Standards Act.... The intent

of the Act is to establish a set of minimum legal standards of

compensation and conditions of employment for Provincially regulated

industries. To vary these minimum standards requires compelling reasons

- 7 -

Davis: 17173589.1

or facts. Granting this variance so that the Employer can hire additional

staff is not sufficient reason.

That refusal was upheld by the Employment Standards Tribunal on reconsideration.

A similar result was reached in a variance application related to school crossing

guards.2 A coalition of Victoria Area Parent Advisory Councils (“VPAC”) sought a

variance to permit the school crossing guards to be paid a minimum of 1.5 hours each

day, comprising of two 45 minute shifts. The VPAC argued that because it was a non-

profit society it could not afford to pay crossing guards more than 1.5 hours per day, and

that requiring higher compensation could result in the failure of the crossing guard

program as a whole. The affected employees supported the variance. Nonetheless, the

variance was refused. The Director noted that it is necessary to take into account all the

workers in the Province in determining whether to grant a variance, and that mere

support by affected employees is not sufficient to justify a variance. The Director

determined that no benefit to employees would accrue if the variance was granted. That

determination was upheld by the Tribunal.

Advantages and Disadvantages of Variances

Variances are a useful tool where a group of employees will be subject to the same

exceptions to that Act. That is especially true where only a few employees are

employed at the time of application, and the employer expects to hire more employees

under the same terms of employment - a variance can be granted that covers future

employees. Variances are also commonly used following a union decertification. For

example, where a collective agreement provides for a work schedule not consistent with

the Act, after the collective agreement is no longer in force, without modifying the work

schedule, the employer would be in violation of the Act. A variance could be granted in

anticipation of that change.

While variances are broader than averaging agreements, they are not without limits.

Variance are not available to modify to the requirement that employees have 8 hours

2 Victoria Confederation of Parent Advisory Councils (Re), BC EST # D436/01

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Davis: 17173589.1

free form work between shifts, except in cases of emergencies. Variances to overtime

wages are not available beyond the 12-hour double time threshold, or the 40-hour

weekly maximum. Variances are also not helpful where a schedule change must occur

quickly - advance consent from the Director is required.

“Excessive Hours”

The requirement that employees not work “excessive hours” cannot be varied - it

applies to both averaging agreements and variances. That legislative carve-out is

consistent with the underlying policy rationale of the Act - averaging agreements and

variances must still preserve “decent” employment relationships.

“Excessive hours” is not defined in the Act, but it is usually defined by reference to some

objectively demonstrated adverse effect on an employee’s health or safety.3 Even

where detriment is shown, the whole employment relationship must be taken into

account, including the employment context, the circumstances of the work, the period of

time over which the hours are being worked, and any other circumstances peculiar to

the individual being required or allowed to work the hours. In some contexts “excessive

hours” may be less than 12 hours.4

In Re Blackburn (16 December 1998), BCEST #D543/98 (Collingwood), the Tribunal

determined that there are four questions to ask in considering whether an employee

could rightfully refuse work because his or her health was at risk: (1) Did the employee

honestly believe that his or her health or wellbeing was endangered? (2) Did the

employee communicate this belief to the supervisor in a reasonable and adequate

manner? (3) Was this belief reasonable in the circumstances? (4) Was the danger

sufficiently serious to justify the particular action the employee took? If the answer to all

four of those questions are yes, it is possible that the scheduling offends the prohibition

on excessive hours in the Act, and offends the decency principle underlying it.

3 Re Johnston (2 July 2010), BCEST #D071/10 (Stevenson).

4 Ibid.

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Davis: 17173589.1

Exclusions from the Act

There are several categories of employees and kinds of professions that are specifically

excluded from the Act. The heart of the Act largely informs the nature of the exceptions.

Where the balance of power between employer and employee is more equal such that

the likelihood for exploitation or decency offending employment conditions are lower,

employees do not require the protection of the legislature, and have been specifically

excluded from the Employment Standards Act.

The classic example of this kind of exception are self-governed professions, including

medical professionals, foresters, real estate agents, engineers, architects, accountants,

and lawyers. For the exception to apply to an individual, that individual must be a

member of the given profession or occupation, and must also be employed in that role.

However, an employee need not exclusively be carrying on work in the excluded

profession to qualify for an exclusion. In Re Mollenhauer (22 January 2009) BCEST

#D013/09 (Stevenson), an employee argued that although he was a professional

engineer, he only performed engineering work 15% of the time, and therefore 85% of

his employment income should be subject to the minimum standards of the Act. The

Employment Standards Branch rejected that argument, finding that it would be

extremely inefficient and impractical to apply the exclusion only to the portions of an

individual’s employment that was excluded. In that case, 15% engineering work was

sufficient to bring the individual’s entire employment within the exception to the Act.

Managers are another common category of exception, although they are only excluded

from the hours of work, overtime, and statutory holidays provisions of the Act. A

manager’s principal responsibility must be supervising or directing human resources, or

alternatively, a manager must be employed in an executive capacity. In determining

whether an individual is a manager for the purposes of the Act, the Employment

Standards Branch will look to the whole employment relationship and its context to

determine the true nature of the relationship. A person who works as a lead hand or

supervisor is usually not considered a manager. Despite some managerial oversight, if

an employee’s primary duties are production related, they are unlikely to be found to be

- 10 -

Davis: 17173589.1

a manager. Even where an employee is a manager, depending on the terms of the

employment agreement, that manager could be entitled to “overtime”. In Kamloops Golf

& Country Club Ltd. v. British Columbia (Director of Employment Standards), 2002

BCSC 1324, the B.C. Supreme Court upheld a determination of the Director awarding

unpaid wages to a manager, whose employment contract specified that he would

receive a salary and work 40 hours per week. the Manager worked more that those

weekly hours, and the Employment Standards Branch agreed that overtime was owing,

notwithstanding the fact that the employee was a manager.

Independent contractors are also excluded from the Act. Whether an individual is an

employee or an independent contractor is a fact specific determination. The Branch will

consider the following factors in determining whether an individual is an independent

contractor:

Is the person under the control of the employer regarding the time, place, and

way in which the work is done?

Does the person own their own tools or use tools provided by the employer?

Does the person have a chance of profit or risk of loss?

How is the person paid?

Has the individual signed an agreement as an independent contractor?

Unlike common law, there is no “dependent contractor” middle category in the Act, and

for that reason, the independent contractor argument is often more successful for

employers in the employment standards context than at common law.

The Act also provides for a number of other industry specific exclusions, including those

for “high technology” companies, commissioned sales people, oil and gas field workers,

truck drivers, loggers, and taxi drivers. Each industry may be excluded from one or

more sections of the act, based on the character of that industry. For example, High

Technology companies (where more than 50% of employees are high technology

- 11 -

Davis: 17173589.1

professionals, or managers of those professionals) are excluded from requirements

about hours of work and statutory holidays, while commissioned sales people are also

excluded from minimum wage requirements. The Act contains detailed provisions

regarding those targeted exclusions, and provides additional guidance for specific

situations.

Unionized employees covered by a collective agreement are excluded from the Act, by

the operation of s. 3. Where the collective agreement has any provision about overtime

or hours of work, those portions of the Act do not apply. However, where the collective

agreement is silent, the Act is deemed to be incorporated into the collective agreement.

Federally regulated employees are not subject to the Act. Employees of the federal

government, armed forces, banks, cross border trucking, federal crown corporations,

airlines and railways (except BC rail), communications, and marine shipping business

are likely federally regulated.

Conclusion

Employers face continuous pressure to improve payroll efficiency and lower costs.

Flexible work scheduling is one tool to achieve those goals, and is provided for in the

employment standards context through the use of averaging agreements, variances,

and in some cases, outright exceptions to the requirements of the Act.

Averaging agreements are made between a single employee and employer, and

address issues with daily overtime only. Variances are available more broadly, and can

cover a group of employees, but require approval from the Director. Exceptions operate

automatically, but the employer bears the burden of proving that an exception does in

fact apply in the event a dispute arises.

In all cases, the underlying rationale of the Act must be preserved, employees must not

be made to work excessive hours at the expense of their health, and working conditions

must be decent. However, within those bounds, there are a wide range of scheduling

arrangements available, and with careful planning, employers and employees should be

able to find a compromise that benefits all parties involved.

- 12 -

Davis: 17173589.1

Averaging Agreement or Variance? Quick Reference Chart

Scheduling Challenge Scheduling Solution

The proposed work schedule will average

more than 40 hours per week.

Variance.

Employees work more than 8 hours in a

day, but still average 40 hours per week.

Averaging Agreement

Employees work more than 8 hours in a

day, but still average 40 hours per week,

and that average is over a period longer

than 4 weeks.

Averaging Agreement modified by a

variance to change the duration of the

averaging agreement.

The agreement must cover all employees,

and there are some employees not in

favour of the planned schedule.

Variance. Averaging agreements apply

only to individual employees, and each

affected employee’s consent is required.

The scheduling change must be

immediate.

Averaging Agreement. Variances require a

formal application be made to the Director,

Averaging agreements can be

implemented as soon as they are signed

and the employee has received her copy.

The agreement is specific to a particular

department rather than a set of employees

Variance. Averaging agreements are

employee specific.

The proposed agreement covers

something more than just overtime

entitlement.

Variance. Averaging agreements deal

exclusively with daily overtime

requirements.

1

HIRING DUE DILIGENCE THE CRIMINAL RECORD CHECK

Presented by Suzanne M. Kennedy

Pre-employment Criminal Record Checks

• Mandatory or Discretionary

• Process

• Legal Restrictions on Collection and Use

• Privacy Considerations

• Human Rights Considerations (Discrimination)

• Practical Considerations

Why conduct a Criminal Record Check (“CRC”)?

2

Why a CRC?

• Identify safety and security risks

• Evaluate employee’s trustworthiness through past conduct

• Comply with contractual or legal obligations

When is a CRC mandatory?

Mandatory Criminal Record Checks

The Criminal Record Review Act (“CRRA”)

- persons who have actual or potential unsupervised access to children or vulnerable adults in the ordinary course of their employment.

- Guards against:

- risk of physical or sexual abuse of children

-risk of physical, sexual or financial abuse of vulnerable adults

3

CCRA - Who is included?

• Physicians, nurses and hospital employees

• Teachers, school staff and administration

• Early childhood educators and day care workers

• Employees in facilities and organizations providing services to vulnerable adults

• Employees of contracted service providers to any employer covered by the CRRA

• Practicum students

Criminal Record Review Program

• Streamlined Process to Obtain CRC

• Independent review identifying individuals posing a risk

• Only relevant information released to employers

• Restrictions on hiring or continuing employment when a risk is identified

• Reconsideration process

Organizations not subject to the CRRA

4

Organizations Not Covered by the CRRA

• Availability of CRC

• Employers not covered by CRRA, may still request CRC through local law enforcement agencies

• Process

• Law enforcement agency policies

• Voluntary written consent required

• Release of positive results may require additional steps and may add delay

Criminal Record Check (“CRC”) vs. Police Information Check (“PIC”)

• CRC lists criminal convictions, penalties and outstanding charges

• PIC is broader in scope and involves a search for all adverse police activity, even where no charges laid or resulting conviction

PRIVACY IMPLICATIONS

5

Privacy Implications

Office of the Information and Privacy Commissioner on Criminal Record Checks and Pre-employment Screening (2012)

• “Highly privacy invasive”

• Concerns heightened by ongoing collection, retention and storage of such information

• Need for a “nexus” between the employment or employment duties and the proposed record check.

• Must be controls in place to minimize privacy impact.

Minimizing Privacy Impacts - Considerations

• Inform applicants why CRC is to be obtained, and how it will be used.

• Ensure reasonably necessary or justified (given nature of employment)

• Timing and volume of requests (All applicants)

• Restrict circulation of CRC results or details

• Limit reviewers to persons not part of the prospective employee’s working group.

• Retention/Destruction of results

Human Rights Considerations (Discrimination)

6

Human Rights Code (BC)

An employer may not refuse to employ or continue to employ a person on the basis of a criminal conviction

unrelated to employment, unless the refusal is a bona fide occupational requirement (“BFOR”)

BFOR

1. Rational connection between BFOR and employment or performance of employment responsibilities

2. BFOR must have been established with honest and good faith belief that it is necessary to fulfil a legitimate work-related purpose; and

3. BFOR must be reasonably necessary to meet that purpose (i.e., employee cannot be accommodated without imposing undue hardship upon the employer).

Minimizing risk of discrimination complaints?

• Before requesting CRC:

• ensure rational connection to position or job responsibilities exists (obtain advice)

• consider reasonable alternatives to conducting the CRC

• Where conviction(s) exist:

• Ensure reliable information about criminal conviction(s) is available, including whether pardon obtained

• Consider nature of any conviction reasonably related to employment responsibilities

• Consider whether all other employment prerequisites met

7

Summary - Before Conducting CRC:

• Does any legal requirement for a CRC apply?

• Does CRRA process apply?

• Existence of nexus between position and CRC? Obtain advice.

• Availability of less invasive means of screening?

• Consider use of third party screening services, and verify their status with law enforcement agencies

During Hiring Process

• Ensure applicants informed of reasons for collecting CRC

• Obtain written informed consent for CRC

• Provide employees with opportunity to respond to inconclusive results (as appropriate)

• Consider prospect of delay in obtaining results in hiring process, and seek advice on conditional offers of employment or probationary periods to address delays

After results obtained

• Ensure accurate information about results obtained (inconclusive results, pardons, etc.)

• Limit reviewers and those with access to CRC results

• Before issuing any refusal, consider and seek advice about existence of BFOR or whether conviction is “related to employment”

• Develop practices or policies to protect privacy of CRC results, and to limit unnecessary collection and retention of CRC results

8

THANK YOU!

Suzanne M. Kennedy

Vancouver, BC

604-643-6470

[email protected]

Follow us @DavisLLP

1

HR Emergency Preparedness

From Wildfires to Bird Flu

1

What can we learn from the “Zombie Preparedness” trend?

2

•Organization: Have emergency protocols/policies in place and ensure that they are clearly communicated to employees;

•Security not complacency: Ensure that your workplace is secure and that it is in compliance with Occupational Health & Safety Standards before an emergency situation arises.

•“Learn from the past, prepare for the future”: Analyze previous emergency situations that your organization may have faced and consider what was done well and what may be improved.

According to Public Safety Canada…

• Disaster: Essentially a social phenomenon that results when a hazard intersects with a vulnerable community in a way that exceeds or overwhelms the community’s ability to cope and may cause serious harm to the safety, health, welfare, property or environment of people; may be triggered by a naturally occurring phenomenon which has its origins within the geophysical or biological environment or by human action or error, whether malicious or unintentional, including technological failures, accidents and terrorist acts.

• Emergency: A present or imminent event that requires prompt coordination of actions concerning persons or property to protect the health, safety or welfare of people, or to limit damage to property or the environment.

3

2

According to Public Safety Canada…

• Hazard: A potentially damaging physical event, phenomenon or human activity that may cause the loss of life or injury, property damage, social and economic disruption or environmental degradation.

• Threat: The presence of a hazard and an exposure pathway; threats may be natural or human-induced, either accidental or intentional.

• Vulnerability: The conditions determined by physical, social, economic and environmental factors or processes, which increase the susceptibility of a community to the impact of hazards. It is a measure of how well prepared and equipped a community is to minimize the impact of or cope with hazards.

4

5

NEGLIGIBLE MARGINAL CRITICAL CATASTROPHIC

6

(RISK INDEX 12)

TRANSPORT ACCIDENT -

ROAD

FREQUENT OR VERY

LIKELY

5

(RISK INDEX 10)

SEVERE WEATHER,

TRANSPORT ACCIDENT –

RAIL

(RISK INDEX 15)

DANGEROUS GOODS

SPILL, TRANSPORT

ACCIDENT – MARINE

(RISK INDEX 20)

FIRE, INDUSTRIAL,

TRANSPORT ACCIDENT

- AIR

MODERATE OR

LIKELY

4

(RISK INDEX 8) EPIDEMIC –

HUMAN, FLOOD,

LANDSLIDE, DEBRIS

FLOW

(RISK INDEX 16)

EARTHQUAKE,

TERRORISM

OCCASIONAL,

SLIGHT CHANCE,

POSSIBLE

3 REMOTE, UNLIKELY,

IMPROBABLE

2(RISK INDEX 2)

DAM FAILURE

HIGHLY UNLIKELY,

RARE

1

(Risk index 3)

SPACE DEBRIS

NEARLY

IMPOSSIBLE,

EXTREMELY RARE

1 2 3 4

Courtesy of Emergency Management BC

6

Response

Local Authority and Business Recovery

Time

PreparednessMitigation

Community Recovery

Business Interruption Business as UsualBusiness As Usual

Levelof

Intensity

Courtesy of Emergency Management BC

3


7

HR Best Practices

HR Emergency Preparedness: Best Practices

8

Knowledge: Know the risks in your area and remain connected to ensure that you are aware of the latest alerts.

In British Columbia, there are many excellent resources, including Emergency Info BC:

http://www.emergencyinfobc.gov.bc.ca/

@EmergencyPrepBC


9

• Have a comprehensive emergency management plan;

• Select emergency leaders wisely;

• Manage risks;

• Focus on communication;

• Provide training and resources; and

• Ensure that policies and procedures are regularly updated.

4

HR Emergency Preparedness 2.0

10

• According to the American Red Cross, the internet (social media, online alerts, news websites, and so forth) is now one of the most popular ways to communicate and to obtain information during an emergency.

• FEMA recommends remaining “Tech Ready” for emergencies by maintaining updated contact lists “across all of your channels”: social media, email, and telephone.


11

Employment Standards Act

• Article 36 of the Employment Standards Act

• Rule: Obligation to ensure that each employee has at least 8 consecutive hours off between each shift worked.

• Exception: In cases of emergency


12

Workers Compensation Act

Occupational Health and Safety Regulation

• Emergency Preparedness and Response:

• Risk assessment

• Emergency procedures

• Training

5


13

Workers Compensation Act

Occupational Health and Safety Regulation

• Additional considerations:

• Emergency lighting

• Notification of fire departments

• Notification of utility service providers


14

The Scope of Privacy Law in an Emergency

Personal Information Protection Act

• Limitations on disclosure of personal information

• Limitations on the use of employee personal information

• Limited exception for an “emergency that threatens the life, health and security of an individual”

THANK YOU!

Pablo GuzmanPartner, Montreal

[email protected]

15

Jo-Anne Weiler

Jo-Anne Weiler has a Master’s Degree in Psychology, and is a member of the American Association of Marriage & Family Therapy, the BC Association of Marriage & Family Therapy, and the BC Association of Clinical Counselors.

Jo-Anne has been in private practice for 14 years, writes a popular Live Well Blog, and provides Live Well Lunch & Learn programs for companies such as Telus and Associated Engineering, as well as for senior executives of the Government of Canada.

Jo-Anne has recently published a book called “Break-up Breakthrough - Learning to Love Again”, about which she has been interviewed in the media on numerous occasions.

Joe Weiler

Prof. Joe Weiler has law degrees from Osgoode Hall and the University of California, Berkeley, and was called to the BC Bar in 1973. He joined UBC Law School in 1974 to teach in the areas of labour law, criminal law, sports law, and entertainment law.

Joe has authored many books and articles about workplace innovation, human resource management, sectoral-level organization and governance, sport and sustainable living, and the relationship of entertainment, popular culture and community-building. Joe’s current scholarly work and consulting practice are focussed on the sustainability legacies of the Vancouver 2010 Olympic Games, workplace wellness, and work-life balance strategies.

Joe has served as outside counsel and Special Advisor to the Vancouver Canucks, and as counsel to Teck Resources Ltd. in relation to Teck Resources’ sponsorship of the Vancouver 2010 Olympic Games.

Joe has chaired over 400 arbitration boards in labour relations disputes across many different industries, was elected to the National Academy of Arbitrators in 1984, and has investigated and mediated many complex workplace disputes.

Joe has held senior executive roles for prominent NGOs and professional organizations, including serving as founding Director and President of the Pacific Institute of Law and Public Policy, Executive Director of the Asia Pacific Business Institute, Chair of the Canadian Bar Association Asian Law Task Force, and Executive Director of the Nemetz Centre for Dispute Resolution at UBC.

Joe has also served on the Board of Directors of BC Film, has been a member of the Advisory Board of the Telus New Media and Broadcast Fund, has served on the Board of Directors of the West Vancouver Arts Centre Trust (the Kay Meek Centre for the Performing Arts), and has been a member of the District of West Vancouver's 2010 Olympic/Paralympic Committee.

9/29/2014

1

IF YOU PUT “WE” IN “ILLNESS” YOU GET “WELLNESS”:

EMOTIONAL INTELLIGENCEIN YOUR WORKPLACE

Presentation by Joe & Jo-Anne Weiler

Oct. 3, 2014

1. ENCOURAGE PHYSICAL HEALTH PRACTICES2. MENTAL HEALTH STRESS MANAGEMENT INITIATIVES

ESSENTIAL COMPONENTS OF A WORKPLACE WELLNESS PROGRAM

OUTCOMES

• Bottom Line Business Case for Workplace Wellness Programs

• Range of Metrics for Objective Assessment of Impacts for Programs /ROI (Return on Investment)

• A Great Example is Teck Resources “Going For Gold” Program

9/29/2014

2

Overall Return on Investment (ROI) on each dollar invested in the workplace wellness initiative ranged from $2.78 to $9.70 in the organizations studied:

International Truck & Engine $9.70 / Principal Financial Group: $3.40 -$7.80

Shown in rates/costs of absenteeism

Soft numbers such as rates of grievances/arbitrations and employee morale.

The ROI depends on how long the programs are in effect & the breadth of the coverage and buy-in by employees.

ROI

HEALTH CARE AND WORKERS COMPENSATION COSTS

International Truck & Engine Corporation

City of Regina Transit Department

Vancouver Shipyards

LABOUR MANAGEMENT RELATIONS

Irving Paper with 50% reduction in grievances & arbitrations reduced by 300%

Cumulative savings which amounted to $250,000 over 6 years

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3

ABSENTEEISM RATES

Pazmac Enterprises - absenteeism became non-existent over 5 years of their workplace wellness program

The YVR saw a 42% reduction over 3 years

TAKE ACTION TO COMBAT ANXIETY AND STRESS WITHIN YOUR WORKFORCE

Is your Workplace one of Competition or Collaboration?

Do You Promote Habits of Win/Lose? The Darwinian/ Zero Sum Game?

Do You Have a Reactive Workplace or a Pro-Active Workforce?

17% of Canadians admit to having sabotaged a co-worker to get ahead. Does that express your workforce?

20% of men and 15% of women say they have taken credit for someone else’s work. Is that your Workplace? (An online poll of 3,000 Canadians conducted by Harlequin Enterprise Ltd)

You can encourage big picture habits at work with shared vision & developed through families with a practice of family meetings

How would you describe the emotional vibe of your workplace?

GROUP INTELLECTUAL INTELLIGENCEDEPENDS ON GROUP EMOTIONAL INTELLIGENCE (IQ = EQ)

Help Your Employees Become Emotionally Aware

Able to Self Regulate

Living at Ease in the Balance Between Work & Home

Workplace stress & the balance 10% of Canadians in the workforce 18-54 suffer mental health issues

This Is A Bottom Line Issue

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MENTAL ILLNESS SHOWS UP IN YOUR WORKFORCE ASBURNOUT

Forgetful?

Angry/Confrontational?

Indecisive?

Unmotivated?

Loss of Libido?

Blood Flow to the Skin is reduced, resulting in sexual dysfunction, immune system down, skin ailments up, reproductive system down.

Work Shows up at Home and Home Shows Up At Work.

People with Burn Out often have lost 20-25% of cells in the hippocampus, degenerative cascade b/c feedback to hypothalamus to reduce cortisol (Sapolsky, Stanford studies).

UNDERSTAND EMOTIONAL RESONANCE

Your feelings are contagious

Create higher morale through supportive, caring direction

We mirror each other

Brain electricity

Emotions spread even in non verbal communication (power of a smile in building trust)

Open Communication; Open Loop Limbic System Interpersonal Regulation & Serotonin

OXYTOCIN

RESEARCH SHOWS A SINGLE BLAST OF OXYTOCIN, REDUCES CORTISOL LEVELS, 44% MORE TRUSTING (SUSAN CARLYLE, PRINCETON UNIVERSITY)

QUICK TOOLS YOU CAN USE TO PRODUCE MORE!

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QUICK FIXES FOR STRESSFUL TIMES

3 finger exercise

3 stacked breaths (PSN)

do things that feel good to you

keep a stress journal

Sense of Smell Power of Repetition Choose a Tool that

Fits You

EQ INDICATORS

Visual Cues Something is Wrong

Verbal Cues Something is Wrong

Degree of Self Care & Degree of Personal Insight

Morning Exercise, Morning Meditation, Sleep Hygiene

Those who prefer a.m. are more likely to say they look for ways to help themselves get ahead

Morning People tend to be Goal Oriented/Self Directed (2010 Harvard Business Review)

EVALUATE YOUR LEARNED EMOTIONAL COPING STYLE

Family EQ Style

Managed or Crisis Driven?

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HOW ARE YOU SHOWING UP?

Rate your mood first thing in the morning 0 - 10

How many thoughts & feelings do we have in one day? (a) 60 (b) 600 (c) 6000 (d) 60,000 (e) 600,000

Is there an inter-personal relationship in your workplace that troubles you? Which relationship inspires you? Which relationship is the most fun?

Where do you imagine yourself: career wise? in your significant relationship? in your family over the next year? next five years? in ten years?

MAKE SURE YOU COUNT!

What would you say about your daily health practices now?

What would you be like if you really took a little extra time for you?

Who do you admire who has these life practices?

TIPS FOR GREATER EQ

Share Your Ideas & Engage With Your Community - BE THE WE

Be Open-Minded

Listen With Empathy

Engage in Behaviour that Fosters Trust

Be Accountable Not ‘Right’

Set Clear Goals with Roles Well Defined

Recognition of Excellence Feels Good

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RECOMMENDATIONS FOR AN EFFECTIVE WORKPLACE WELLNESS PROGRAM

Top-Down Commitment

Bottom-Up Engagement

Collaborative Design & Implementation Process

Well-Rounded Wellness Program

Encouragement of Employee Engagement Through Incentives

Encouragement of Innovation Excellence Through Public Recognition

THANK YOU

Jo-Anne Weiler, M.A. R.M.F.T., R.C.C.,C.P.C.C.Therahealth Network Ltd.

Tel. (604) 925-1907joanneweiler.com

Jo-‐Ann

1 Jo-‐Anne Weiler, Principal, Office: 206, 2438 Marine Drive, West Vancouver, B.C. T. 604 925 1907 F. 604 924 1707

e Weiler, Principal, Office: 206, 2438 Marine Drive, West Vancouver, B

THERAHEALTH NETWORK LTD THERAHEALTHNETWORK.COM 604 925 1907

CONSULTING & ADVISORY SERVICES

LUNCH & LEARNS HELD AT YOUR WORKPLACE

LUNCH & LEARN SERIES OF 3 PROGRESSIVE EXPERIENCES

LUNCH & LEARN SERIES OF 5 WHOLE HEALTH WELLNESS

STEP UP YOUR BUSINESS PERFORMANCE WITH A WHOLE WEEKEND RETREAT – INNOVATIVE LIVE WELL, BODY WELL, AND EAT WELL HEALTH SOLUTIONS. WE BRING THE TEAM, DEPENDING ON YOUR NEEDS.

HELD FRIDAY 6:00 – 8:00PM, SATURDAY 9:00 – 4:00,

& SUNDAY 10:00 – 3:00 PM.



LUNCH & LEARN

LIVE WELL MENU

EMOTIONAL INTELLIGENCE – PART ONE. IF YOU PUT ‘WE’ IN ILLNESS, YOU GET ‘WELLNESS’. BE REMINDED OF THE POWER OF KINDNESS. UNDERSTAND HOW GUILT & SHAME UNDERCUT CREATIVITY

EMOTIONAL INTELLIGENCE – PART TWO. EFFECTIVE COMMUNICATION – BODY LANGUAGE, MIRRROR NEURONS, EMOTIONAL RESONANCE, ACCOUNTATBLE LANGUAGE, DIFFERENTIATION

DIFFICULT CONVERSATIONS – GETTING BACK IN SYNC, BOUNDARIES, SELF, CONTEXT & OTHER

ANXIETY IS A WORKPLACE PRODUCTIVITY KILLER – LEARN TOOLS TO MANAGE AND UNDERSTAND THE PSYCHE’S CALL FOR ACTION

LACK OF SLEEP IS A WORKPLACE PRODUCTIVITY KILLER – A DEFICIT KILLERS THAT CAN BE REMIDIED; LEARN BETTER SLEEP HYGEINE HABITS

FOUR PILLARS OF RELATIONSHIP: BUILDING MENTORSHIP AND COLLABORATION AT WORK.

YOUR TEAM WILL LEARN HOW TO THINK “WE”; TRICKS TO ‘JOIN’; CREATE POSITIVITY RESONANCE, SELF REGULATE, PREPARE BETTER FOR MEETINGS AND PERSONAL CHALLENGES.

YOUR TEAM WILL LEARN HOW TO HAVE MORE IMPACT, CREATE LONG TERM POSITIVE CHANGES, UNDERSTAND BOUNDARIES, IDENTIFY THEIR STRENGHTS AND AREAS TO CONSIDER FOR PERSONAL GROWTH

YOUR TEAM WILL LEARN TOOLS TO ALIGN VALUES, UNDERSTAND INTERNAL & EXTERNAL PROCESSORS, HOW TO EMOTIONALLY DIFFERENTIATE, COLLABORATE, AND HAVE MORE EASE WHEN POLITICS RISE. IN THIS SESSION YOUR TEAM LEARNS WHY ANXIETY SHOWS UP, WHAT IS GOING ON IN THE BRAIN, AND HOW TO KICK IT IF AND WHEN IT SHOWS UP. LEARN TRICKS RUSSIAN OLYMPIC ATHLETES USE! THIS SESSION IS PACKED WITH GREAT TOOLS & INFORMATION THAT WILL REVOLUTIONIZE YOUR LIFE. WE ALL NEED 8 HOURS. WHAT WILL CHANGE FOR YOU WHEN YOU LEARN THE A-‐ZZZZZ’S OF WHAT YOUR BODY NEEDS TO GO INTO STAGE ONE SLEEP? UNDERSTAND THE IMPLICATIONS OF THE 90-‐MINUTE CIRCADIAN SLEEP CYCLE & WHAT YOU CAN DO IF YOU SUFFER FROM SLEEP INTERRUPTIONS. TRAIN YOUR BRAIN. INVEST IN BUILDING STRONGER RELATIONSHIPS AND BUILD YOUR LEGACY. YOUR TEAM WILL LEARN HOW TO MAKE SMALL ADJUSTMENTS AND HAVE MORE MEANING AT WORK & HOME.

Jo-‐Ann




STRATEGIES THAT HELP YOU TO MANAGE YOUR WORK AND PARENTING DEMANDS

LOVE UP, STRESS DOWN; FEED YOUR ROMANTIC LIFE AND DEVELOP YOUR MOJO! IT’S NOT WHAT I HAVE IN MY LIFE BUT WHO I HAVE IN MY LIFE THAT COUNTS. TAKE CARE OF YOU AND YOUR PARTNERSHIP.

THE VALUE OF SETTING SHORT & LONG TERM GOALS, THIS SESSION GUIDES YOU THROUGH THE WHEEL OF ENGAGEMENT, ASSESSMENT AND PLANNING

YOUR TEAM WILL LEARN POWERFUL WAYS THEY CAN FACE THE CHALLENGES OF TIME, AND INITIATE MORE COLLABORATION. DON’T GIVE UP: CHANGE YOUR HABITS TO CHANGE YOUR LIFE! YOUR TEAM WILL LEARN ABOUT THE CHEMISTRY OF LOVE & HOW THEY CAN ACTIVATE THE LOVING CENTERS OF THEIR BRAIN WITH RELATIONSHIP STRATEGIES THAT WORK. UNDERSTAND THE FIVE LOVE LANGUAGES. UNDERSTAND YOUR CARING BEHAVIORS, AND DEVELOP A MUTUAL RELATIONSHIP VISION IN A TAKE AWAY ASSESSMENT TOOL GIVEN IN SESSION. YOUR TEAM IS GUIDED THROUGH WAYS THEY CAN IDENTIFY AND ACTIVATE MORE PASSION AND CREATIVITY IN EVERYTHING THEY DO. THEY WILL TAKE AWAY TOOLS AND STRATEGIES TO IMPLIMENT TODAY, THIS MONTH, THIS YEAR, AND FIVE YEARS FROM TODAY.



BODY WELL MENU

USE YOUR OFFICE AS YOUR OWN GYM – MAKE IT WORK

POSTURE PERFECT

REV UP YOUR METABOLISM

GET A BETTER BODY BY MAKING SMALL ADJUSTMENTS

LEARN FUN WAYS YOU CAN USE YOUR DESK, YOUR CHAIR, YOUR OFFICE HALLWAYS, YOUR STAIRS AND EVEN YOUR BUSINESS MEETINGS, SO YOU & YOUR TEAM CAN BE BODY STRONGER BY NEXT YEAR. LEARN THE VALUE OF STRENGTHENING YOUR BACK, YOUR CORE AND YOUR OVERALL PHYSICAL STRUCTURE. THE PAYOFF TO YOU IS IN LONG TERM HEALTH. UNDERSTAND SITTING, STANDING AND MOVING WELL. YOUR TEAM LEARNS HOW SHORT & FAST EXERCISE CHANGES METABOLISM; STRATEGIES TO FIGHT BACK WEIGHT GAIN/LOSS; HOW TO STEP UP THEIR ENERGY IN QUICK EFFECTIVE WAYS. ASSESS YOUR NEEDS AND LEARN WAYS TO TACKLE SIGNS OF AGING.

Jo-‐Ann




EAT WELL MENU

EAT WELL ON THE RUN

UNDERSTAND GLUTEN & THE WHEAT BELLY

WHO MAKES DINNER TONIGHT?

THE NETWORK CALL 604 925 1907 JO-‐ANNE WEILER, M.A., R.M.F.T., R.C.C., C.C.C. – PRINCIPAL, THERAHEALTH MENTAL HEALTH & WELLNESS

JOE WEILER, U.B.C. LAW PROFESSOR -‐-‐ HUMAN RESOURCES INNOVATION PLANNING, WORKPLACE RELATIONS

GET FIT EXPERTS – REGISTERED KINESIOLOGISTS

EAT RIGHT – REGISTERED DIETICIANS

MANAGE CHANGE – SENIOR CONSULTANTS IN TALENT MANAGEMENT

MASSAGE THERAPY – REGISTERED MASSAGE THERAPISTS

SPORTS MEDICINE PHYSICIAN

INTEGRATED WELLNESS PHYSICIANS

LEARN HOW YOU CAN PACK YOUR BEST LUNCH & WHAT TO LOOK WHEN YOU ARE GRABBING A FAST ONE UNDERSTAND THE PRINICPLES BEHIND WHEAT BELLY ONCE AND FOR ALL. YOUR TEAM WILL LEARN HOW TO MAKE SMALL ADJUSTMENTS TO THEIR DIET AND SEE THEIR ENERGY INCREASE. YOUR TEAM LEARNS WAYS THEY CAN PLAN MEALS AND CREATE A MORE HEALTH-‐CONSCIOUS DIET TO SUPPORT THEM IN THEIR WORK LIFE.



ASSESS YOUR NEEDS 0 – 5 BETTER TEAM PROCESS 0 – 5 BETTER COMMUNICATION 0 – 5 HEALTH NEWSLETTER 0 – 5 IMPROVE ABSENTEEISM 0 – 5 HEALTH HABITS 0 – 5 SCHEDULING HABITS 0 – 5 SLEEP CONCERNS 0 – 5 WORK – FAMILY STRESS 0 – 5 EMOTIONAL INTELLIGENCE 0 – 5 MORE CORPORATE VISION

employment and labour law conference 2014 in vancouver/media/files/insights... · "2013...

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