Who’s Who Legal: Canada 2018 Highlights Five Roper Greyell Lawyers

November 2018

We are pleased to announce that five Roper Greyell lawyers have been ranked in the 2018 edition of Who’s Who Legal: Canada.

Meet our lawyers who have been recognized for their expertise:

Thomas A Roper Q.C.
Delayne Sartison Q.C.
Gregory J Heywood
J. Najeeb Hassan
Sandra Guarascio
James D Kondopulos

Who’s Who Legal notes that “Roper Greyell is a go-to firm for labour and employment disputes” and includes the following commentary:

Thomas Roper QC is “a very significant name” and “a leader in the field” of labour law. His practice is “one of the best” and he “has a great reputation” for his work on contractual rights and wrongful dismissal.

Gregory Heywood commands great respect from colleagues in the field of labour and employment. He possesses more than three decades’ experience as a litigator and is known for his work on wrongful dismissals and workplace discrimination.

James Kondopulos enjoys an excellent reputation in the Canadian market. Sources speak highly of his practice, where he offers great insight into constructive dismissal actions and compensation disputes.

Najeeb Hassan is praised by colleagues as “one of the top lawyers at the firm”. He has an enviable practice covering such issues as the certification of unions and strike management.

Click here to view the complete list of Who’s Who Legal: Canada 2018.

About Who’s Who Legal

Since 1996, Who’s Who Legal has identified the foremost legal practitioners in business law based upon comprehensive, independent research. It is impossible to buy entry into this publication.

Chambers Canada 2019 Ranks Roper Greyell in Band 1

September 2018

Once again, Roper Greyell LLP has been ranked by Chambers Canada as a Band 1 firm for Employment and Labour. Noted as a “top-shelf employment and labour practice with a stellar reputation in British Columbia”, the publication highlighted four of our partners:

  • Thomas A. Roper, Q.C. as “a distinguished authority in the employment and labour market” provincially and nationally.
  • Delayne Sartison, Q.C. “commended as a ‘top-notch’ lawyer”, well-known as an expert on the Canadian Charter of Rights and Freedom.
  • Najeeb Hassan, “lauded as a ‘top-rate lawyer’, earned ‘plaudits for his ‘very deep knowledge of labour law’.
  • Greg Heywood ‘singled out for his strength in litigation, where he has built a reputation as a strong opponent’.

About Chambers Canada

Chambers Canada covers lawyers and law firms practicing in all provinces and territories in Canada. The guide recommends lawyers and law firms in over 40 specialist practice areas across Canada, and is published annually each September.

Nine Roper Greyell Lawyers Named to 2019 Best Lawyers™ List

August 2018

In the 2019 Edition of The Best Lawyers in Canada, nine of our lawyers were recognized. This is a 50 percent increase in the number of lawyers highlighted since last year and reaffirms Roper Greyell’s reputation for excellence as one of the most well-respected and recognized workplace law practices in Western Canada.

Education Law

Labour and Employment Law

About Best Lawyers

Best Lawyers has been providing comprehensive coverage of top legal talents in Canada and around the world for over 30 years.  Lawyers on the list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

About Roper Greyell

Roper Greyell is one of the largest employment and labour law firms in Western Canada, with 35+ workplace lawyers serving clients in virtually every sector of the economy, including some of the largest and most sophisticated private and public sector employers in British Columbia and across Canada. No matter what the challenge — immediate or long term, simple or complex — we develop proactive strategies to help businesses succeed and prepare for the future.

BC Statutory Leaves: The Times They Are A-Changin’

May 2018

Bill 6, the Employment Standards Amendment Act 2018, passed third reading in the BC Legislature and will come into force on royal assent. The bill amends the following statutory leaves under the Employment Standards Act (the “ESA”):

PREGNANCY LEAVE (Section 50)

– An expecting mother may now commence pregnancy leave up to 13 weeks prior to the expected birth date (up from 11 weeks).

– An employee who requests leave after giving birth to a child is now entitled to 17 weeks of leave (up from 6 weeks).

PARENTAL LEAVE (Section 51)

– A new mother is now entitled to up to 61 additional consecutive weeks of unpaid parental leave immediately after her 17-week pregnancy leave.  Overall, a new mother is now entitled to up to 78 weeks in total (18 months).

– A non-birth parent and adopting parent is now be entitled to up to 62 consecutive weeks of unpaid parental leave (up from 37 weeks).  This leave must begin within 78 weeks after the birth of the child or after the child is placed with the parent.

– These proposed amendments align BC’s parental leave benefits with the recent changes to the federal Employment Insurance Act which provide parents with up to 18 months of federal employment insurance benefits.

COMPASSIONATE CARE LEAVE (Section 52.1)

– Compassionate care leave is available to an employee who must care for a family member who is terminally ill and has a significant risk of death within 26 weeks.

– Compassionate care leave will increase from 8 weeks to 27 weeks.  It will remain an unpaid leave.  The leave now ends on the last day of the week that is the earlier of the passing of the family member and 52 weeks from when the leave commenced (up from 26 weeks).

LEAVE RESPECTING DISAPPEARANCE OF CHILD (Section 52.3) – new addition

– This is a new addition to the legislation which provides a parent whose child (under 19 years old) disappears as a result of crime with up to 52 weeks of unpaid leave.  This leave is not available for an employee who is charged with a crime resulting in the disappearance of his or her child.  The leave must be taken as one unbroken, continuous period of time subject to employer consent otherwise.

– The unpaid leave may end on the earlier of the date on which the child is found dead; the date on which the circumstances indicate it is no longer probable that the child’s disappearance is a result of crime; the date the employee is charged with a crime resulting in the disappearance of his or her child; or 14 days after the child is found alive.

LEAVE RESPECTING DEATH OF CHILD (Section 52.4) – new addition

– The ESA’s general bereavement leave already entitled an employee to take up to 3 days of unpaid leave on the death of an immediate family member, which included the death of a child.  This new leave specifically deals with the death of a child and allows an employee to take up to 104 weeks (2 years) of unpaid leave following the death of a child (under 19 years old), unless the employee is charged with a crime resulting in the death of his or her child.  This leave must be taken as one unbroken, continuous period of time subject to employer consent otherwise.

CONCLUSION

Overall, these amendments, which broadly reflect legislative changes recently made in Ontario, provide BC employees with some of the most generous leave entitlements in the country.

If you have any question at all regarding the above, please do not hesitate to contact Roper Greyell LLP. Individual lawyer contact information can be found at ropergreyell.com.

While every effort has been made to ensure accuracy in this summary, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The summary is for general information purposes only and does not constitute legal advice

Employers, This is How to Build a Case for Dismissal with Cause

April 2018

Financial Post contributor and senior partner of Levitt LLP, Howard Levitt explores a recent Supreme Court of British Columbia decision, Manak v. Workers’ Compensation Board of British Columbia, featuring Roper Greyell lawyer, Maggie Campbell who represented the employer.

Below are Howard Levitt’s six lessons to employers on building a case for cause:

1. Define the core values: Confidentiality was of central importance to the functioning of the Board and, in particular to her role. Manak signed a covenant and undertaking underscoring its significance.

2. Be patient in an investigation: The employer took the time to interview witnesses. It also interviewed Manak twice. This process ensured that she was afforded a full opportunity to respond to the allegations and evidence and to commit her to a position.

3.  Take detailed notes of the investigation: Considering that the trial of a case may take place years after an investigation and terminations and the inevitable fading of memories over time, the notes assume critical significance for assessing credibility.

4. Obtain signed statements: In this case, Kuss had a dim memory of some of the relevant conversations, but the statements with her confirmation proved persuasive to the court.

5. Put specific allegations to employee: In this case, the employer was also able to rely on the grounds of lack of candour because it had confronted Manak with the allegations and she persisted in her denials.

6. Give the employee reasonable time to consider the offer: While the court ultimately upheld the settlement, it was critical of Worksafe for giving only a 24-hour ultimatum, which it described as “a short fuse.”

Read Howard Levitt’s complete article here.

Click here to learn more about Maggie Campbell.

Roper Greyell ranked in the 2018 Edition of Legal 500 Canada

December 2017

Roper Greyell is proud to once again be recognized as a leading firm in the area of Labour and Employment Law by Legal 500 Canada. In addition, Thomas A. Roper, Q.C. continues to be ranked individually in the “Leading Lawyers” category. The 2018 edition of the publication noted that Tom ‘has rightly earned the highest respect in the profession.’ Special recognition goes to Jennifer Devins who was featured in the “Next Generation Lawyers” category for the first time.

Click here for complete rankings.

Legal 500

One of the world’s largest legal referral guides, The Legal 500 series has been analyzing and ranking the capabilities of law firms across the world for 27 years. Its comprehensive research program is based on feedback from 250,000 clients worldwide, submissions from law firms and interviews with leading private practice lawyers.

Roper Greyell Recognized in Chambers Canada 2018

September 2017

We are pleased to announce that Roper Greyell has once again been ranked as a leading employment and labour law firm in the 2018 edition of Chambers Canada. Thomas A. Roper Q.C., Delayne Sartison Q.C., Gregory J. Heywood and J. Najeeb Hassan were also ranked individually.

Meet the Roper Greyell lawyers who have been recognized for their expertise:

Thomas A. Roper Q.C. was first ranked by Chambers and Partners in 2009 and is known for his ‘long-standing practice’. One client praised him as “highly responsive” with another adding that he is “imbued with wisdom.”

One client described Delayne Sartison Q.C. as “one of the best lawyers I’ve dealt with – she’s highly organised, highly responsive and very well prepared.”

Gregory J. Heywood is described by one source as “one of the most tenacious lawyers I’ve worked with.”

J. Najeeb Hassan  is known for his experience with the certification and decertification of unions, collective agreements and managing strikes. One client commented that they relied on his “knowledge and experience to help guide us through complex and contentious labour issues.”

All quotes are from Chambers Canada 2018.

Click here to view the 2018 Chambers Canada Guide.

About Chambers Canada

Chambers Canada is a well-respected legal publication that ranks the world’s best lawyers and law firms. Rankings are based on in-depth research and interviews conducted by over 150 highly qualified researchers.

Reading the Tea Leaves: Some Early Indicators of Potential Changes to Workplace Law in British Columbia

August 2017
Legal update by: Brandon HillisMike Hamata

Last week, Premier John Horgan distributed mandate letters to his 22-member cabinet.

Each letter makes references to the new government’s “three key commitments to British Columbians” (making life more affordable, delivering the services that people count on and building a strong, sustainable and innovative economy that works for everyone), the Confidence and Supply Agreement with Andrew Weaver’s Green Party Caucus and a commitment to reconciliation with British Columbia First Nations.

Each letter also sets out the specific priorities for each ministry. For example, Finance Minister Carole James has been mandated to eliminate tolls on the Golden Ears and Port Mann bridges, and Minister of Mental Health and Addictions Judy Darcy has been directed to develop an immediate response to the opioid crisis that has gripped much of British Columbia in the past year-and-a-half.

From a workplace law perspective, the most interesting mandate letters are those given to Minister of Labour Harry Bains and Attorney General David Eby, which provide some valuable (albeit early) indicators of some of the changes that may come to British Columbia:

Minimum Wage

Significant increases to the minimum wage are coming. One of the tasks set out for Minister Bains is to establish a commission to support the work of implementing a minimum wage of $15/hour by 2021.  Minister Bains’ mandate letter makes it clear that the province will be moving to a $15/hour minimum wage in the next four years, and that the only question that remains is how it is going to get there.

A $15/hour minimum wage will represent a close to 33% increase over the current minimum wage, and will move the province from having one of the lowest minimum wages in the country to having one of the highest.[1]

Temporary Foreign Workers

Not to be confused with the Long Gun Registry, Minister Bains has been directed to create a Temporary Foreign Worker Registry to “…help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.”

On October 6, 2016, Mr. Horgan (as he then was) identified the Temporary Foreign Worker Program (“TFWP”) as a cause of unemployment in the construction industry:

We’re hearing that the temporary foreign worker program is taking jobs away from British Columbians in the construction industry, but the full impact on people is unknown… The Christy Clark government needs to start tracking temporary workers so we can see how many jobs and apprenticeship opportunities for young British Columbians are being lost.

The election platform casts the issue in a different light, and instead focuses on preventing abuses of temporary foreign workers, providing a path for foreign workers to “remain in BC”, and improving recognition of foreign credentials. The platform also includes a commitment to end the practice of charging recruitment fees.

Ottawa is responsible for the TFWP, but provinces are largely responsible for its enforcement. B.C.’s proposed Registry is modelled after a similar registry in Manitoba. A B.C. registry could allow the provincial government to more actively monitor compliance with the requirements of the TFWP. In 2014, the Globe and Mail reported that in that in the first fiveyears of its registry, Manitoba investigated more than 600 registered employers who hired temporary foreign workers and found that nearly half were non-compliant.

Employment Standards

Minister Bains’ letter tasks him with updating employment standards to reflect the “changing nature of workplaces and ensure that they are applied evenly and enforced.”

Given the vagaries of that statement, determining what Minister Bains’ next steps may be requires a fair amount of guesswork. However, the reference to the “changing nature of workplaces” suggests that amendments to the ESA could be aimed at reflecting the increased amount of part-time, on-call and casual or seasonal employment in the province, as well as the fact that increasing numbers of workers are able to work remotely.

Such changes could include changes to the work scheduling provisions of the ESA along the lines of those proposed in Ontario, which would see employees get paid for being “on-call” and not called into work, and which may provide employees with the right to refuse to accept shifts without repercussion if their employer asks them to work with less than four days’ notice.  It is also possible that changes could be made to the legislation to allow employers and employees to put together flexible working schedules, whether by (hopefully) amending the averaging agreement provisions of the ESA to allow for more flexibility (and less red tape) or by expressly allowing for work-from-home or remote work arrangements.  Changes could also include the implementation of equal-pay-for-equal-work provisions to ensure that casual, part-time, temporary and seasonal employees are paid equally to full-time employees when performing the same job for the same employer, as has been proposed in Ontario.

The reference to ensuring that employment standards “are applied evenly and enforced” suggests that the Ministry could be hiring compliance officers with the mandate to proactively ensure that employers in B.C. are complying with the requirements of the ESA.  For years, the Employment Standards Branch’s processes have been largely complaint driven: employers are only held to account when a complaint is filed.  The hiring of compliance officers could provide the Branch with the power to conduct audits of workplaces to ensure that employers are complying with the legislation, a move which – particularly if combined with increased penalties for non-compliance – would provide employers with a powerful incentive to ensure that they are, in all respects and at all times, compliant with the ESA.

Workers’ Compensation

Minister Bains’ letter also makes reference to increasing compliance with “laws and standards put in place to protect the lives and safety of workers.” Similar to the changes anticipated at the Employment Standards Branch, this language suggests that WorkSafeBC may soon be hiring additional compliance officers, and tasking them with taking the initiative to make sure that employers are compliant with the provisions of the Workers’ Compensation Act.

Labour Code

Minister Bains’ letter broadly references reviewing the Labour Relations Code to ensure that workplaces support a strong, sustainable economy with fair laws for workers and businesses.  Such a statement is certainly the vaguest of the commitments set out in the mandate letter for the new Minister of Labour.

Given their broad support for the elimination of the secret ballot in certification applications, a review of the Labour Relations Code could lead to an attempt to revert to the card-check system, which enables unions to become certified without a vote, so long as they sign up a sufficient number of employees in the proposed bargaining unit.  As noted in the Vancouver Sun on June 16, 2017, during a conference with members of the B.C. Government and Services Employees’ Union:

… Horgan said he prefers a system called card check, in which a union is certified if a majority of members sign union cards.

“I believe that the right to join a union is a fundamental right in Canada and I believe card check is an appropriate way for that happen,” he told the board.

However, whether such efforts would ultimately be successful is questionable, given the lack of support for such a system expressed by Green Party Leader Andrew Weaver.

Workplace Human Rights

There’s no ambiguity in the direction to Minister Eby to “re-establish the Human Rights Commission.”

Presently, B.C. has a Human Rights Tribunal that adjudicates complaints under the B.C. Human Rights Code. Complainants, with the help of counsel (but frequently on their own), can initiate a complaint which proceeds directly to the Tribunal. The current system is complaint driven – the Tribunal does not have a mandate to investigate human rights violations in the absence of a complaint.

British Columbia had a Human Rights Commission between 1973 and 1984, when it was disbanded. The Commission had a second run, which ended in 2002. We expect the new B.C. Human Rights Commission will have broader investigatory powers than the Tribunal, and may take a more active role in searching out violations of the Human Rights Code. Commentators have identified temporary foreign workers as a potential focus of the reincarnated Commission’s attention.

In short, change is coming to the laws that regulate workplaces in British Columbia. While the ultimate nature and impact of some of these changes is not yet entirely clear, employers are advised to keep abreast of these developments, and to take steps to ensure that as legislation changes, their workplaces remain compliant.

[1] In Alberta and Ontario, efforts are underway to increase respective minimum wages to $15/hour.

Employer Obligations on General Voting Day: 2017 Provincial General Election

April 2017

A Provincial General Election is scheduled to take place in British Columbia on Tuesday, May 9, 2017.

The B.C. Election Act imposes certain obligations on employers to ensure that their employees have sufficient time free from work to exercise their right to vote.

We are publishing this bulletin to help employers understand the scope of their obligations on General Voting Day.

Who can vote in the Provincial General Election?

All Canadian citizens who are at least 18 years old on General Voting Day and have lived in B.C. for six months before election day are eligible to vote in the Provincial General Election.

When are polling stations open on General Voting Day?

Polling stations are open from 8:00 a.m. to 8:00 p.m. PT.

Time off for Voting

Section 74 of the Election Act outlines an employer’s obligations to provide time off for voting. Of particular significance, employers must provide their employees:

  • Four consecutive hours off work. Employees eligible to vote are entitled to four consecutive hours free from work during voting hours on General Voting Day – i.e. between 8:00 a.m. and 8:00 p.m. PT.
  • Without loss of pay or penalty. An employer may not make any deduction from an employee’s pay or impose any other penalty because he or she took time off to vote. Employees are entitled to their regular compensation for hours not worked because of voting.
  • At a time scheduled by the employer. While an employer must provide its employees with time off work, the employer can choose in its discretion when to provide the four consecutive hours for voting.

Example:

Sam and Toby both work on General Voting Day. Polling stations are open from 8:00 a.m. to 8:00 p.m. PT

Sam works from 9:30 a.m. to 5:30 p.m. The employer must let Sam do one of the following:

  • Start late – 12:00 p.m. or later
  • Leave early – 4:00 p.m. or earlier
  • Take four consecutive hours off work during his scheduled hours

Irrespective of when Sam takes time off for voting, he is entitled to his regular compensation for his full shift

Toby works from 8:00 a.m. to 4:00 p.m. Toby is not entitled to any time off work because he has four consecutive hours free from work for voting – 4:00 to 8:00 p.m.

Employers Operating in a Unionized Environment

Any employer operating in a unionized environment is advised to review all provisions of the applicable collective agreement which speak to obligations on General Voting Day. The employer may have obligations over and above the statutory obligations set out in the Election Act.

Employees Working in a Remote Location

The right to have four consecutive hours off work on General Voting Day without any loss of pay or penalty is not a right available to all employees. An employee who is in a remote location by reason of employment such that he or she would be unable to reasonably reach any voting place during voting hours is not entitled to time off for voting.

Penalties for Non-Compliance

The consequences for an employer of failing to grant time off work for voting can be significant. Failure to comply with section 74 of the Election Act is an offence and, on conviction, the employer may be liable to one or both of the following: a fine of up to $10,000 or imprisonment for a term not longer than one year.

Advance Voting

Any employer anticipating a disruption to its business on General Voting Day can encourage its employees to vote in advance voting. This will be available throughout B.C. from 8:00 a.m. to 8:00 p.m. (local time) on April 29 and 30 and May 3, 4, 5 and 6, 2017. The employer cannot compel its employees to vote on those voting days.

If you have any question at all about how the Provincial General Election may affect you or your workplace, please contact Tamara or James or any other lawyer at Roper Greyell LLP.

Tom Roper Discusses Bullying and Harassment in the Tourism Industry on CBC Radio

February 2017

WorkSafeBC receives the greatest number of workplace bullying and harassment enquires from the hospitality industry. Tom Roper discusses the extent of the issue on CBC Radio.

Listen here for On the Coast interview.
Listen here for All Points West interview.