Resources: Employment

Broad Termination Clause and a Failure to Apply Prerequisites Results in a Bonus for Terminated Employee

A recent BC Supreme Court decision, Thoma v. Schaefer Elevator Components Inc., 2019 BCSC 100, reviewed the impact of a written employment agreement and the employer’s past practice of applying it.  The employment agreement allowed the Employer to terminate the employee without cause upon providing six months’ notice, which expressly included “his contractually agreed remuneration during the six month notice period.”

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B.C. Court of Appeal Unequivocally Affirms Test For Family Status Discrimination

In my opinion, [the concept of family status] cannot be an open-ended concept … for that would have the potential to cause disruption and great mischief in the workplace ….

Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case ….  I think that 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 prima facie case.

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BC Court of Appeal Confirms High Standard for Mental Distress Damages

An employee who believes they have been wrongfully dismissed from their employment can seek damages in court for both the fact of their dismissal and the manner in which they were dismissed.  In Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383, the Court of Appeal affirmed that there remains a high threshold in British Columbia for plaintiffs seeking mental distress damages.

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British Columbia Law Institute Publishes Report on the Employment Standards Act: Changes to BC Employment Standards Anticipated in 2019

On December 10, 2018, the British Columbia Law Institute published its 300 page report on reforming the BC Employment Standards Act .

We expect the report’s recommendations will likely provide the framework for legislative change in 2019. Here, we summarize some of the more notable points.

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“It Don’t Matter If You’re Black Or White”*… It’s Illegal to Discriminate

In 1991, Michael Jackson’s hit single, “Black or White”, topped the Billboard Hot 100 just three weeks after its release.  Perhaps it was the universally positive anti-racism message, as much as the music itself that propelled its popularity.  Regardless, one would have thought that by 2018 it would have been well understood that the fact that an employee was white/Caucasian does not create a defence for an employer’s racist conduct.  Sadly, Spruce Hill Resort and Kin Wa Chan must not have been Michael Jackson fans.

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Breach of Telecommute Agreement Resulted in Constructive Dismissal: Hagholm v. Coreio Inc., 2017 ONSC 7713, varied 2018 ONCA 633

The Ontario Court of Appeal recently affirmed a decision of the Ontario Superior Court of Justice which found that an employee had been constructively dismissed when the employer revoked her telecommute agreement and arbitrarily reduced her annual bonus.

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Government of Canada Introduces Major Changes to Canada Labour Code and Creates Federal Pay Equity Obligations

Recently, the Federal Government tabled, for first reading, Bill C-86 that, assuming it passes in its current form, will (i) significantly alter federally regulated employers’ obligations under the Canada Labour Code and (ii) create a new federal pay equity regime.  A flavour of the key changes included in Bill-C-86 is provided here.

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Candour in the Context of Employment References: A Review of Kanak v. Riggin, 2018 ONCA 345

The Ontario Court of Appeal recently upheld an important lower court finding that employers can be shielded from liability for giving negative employment references.

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An Employer’s Duty to Provide a Discrimination-Free Workplace

A recent B.C. Human Rights Tribunal decision serves to remind employers of their duty to provide a discrimination-free workplace.

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The B.C. ESA has Changed: What’s New and What’s Coming

B.C.’s NDP government recently moved forward with some significant changes to the province’s Employment Standards Act (“ESA”).  The minimum wage and some statutory leaves of absence have been increased, and these changes are merely the start:  further and far reaching amendments to the ESA are expected in the near future.

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