Human Rights Links
Relevant information about Human Rights issues.FAMILY STATUS UNDER BC HUMAN RIGHTS CLARIFIED – CHANGE OF TERMS OF EMPLOYMENT NOT REQUIRED
The Court concluded that for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.
read moreTermination Clause Not Vague and Unenforceable – Great Care Required When Drafting Employment Contracts
[22] I find the Termination Clause to be clear. It states that upon termination without cause, Ms. McMahon would receive the greater of, under subparagraph (a), notice or pay in lieu of notice prescribed in the ESA and, under subparagraph (b), two weeks or more notice or payment in lieu of notice based on base pay only. The use of the word “and” in between clauses (a) and (b) does not detract from the ordinary meaning of the words “greater of” which precedes these paragraphs, being that Ms. McMahon would be entitled to the greater of the notice or pay in lieu of notice provided for in each of those options.
[23] With respect to the word severance, the Termination Clause is clear in that severance is used to define the notice Ms. McMahon would be entitled to under subclause (b) only. The defined term severance follows immediately at the end of subclause (b). As a result, the fact that severance under subclause (b) only includes payment of base salary for a minimum of two weeks does not offend the ESA. Simply put, Ms. McMahon is entitled to notice under whichever of the two options is better for her. I do not find that to determine her entitlement to notice or pay in lieu of notice requires that Ms. McMahon would be required to perform complex calculations, as she alleges.
read moreOntario Court of Appeal: COMPANY TERMINATED INDEPENDENT CONTRACTOR AGREEMENT – DUTY TO EXERCISE RIGHT TO TERMINATE IN GOOD FAITH
The Court of Appeal noted (para. 17) that the trial judge referred to evidence of the “respondent’s understanding that there would be an element of good faith in the exercise of the provision by the appellant, and found that this understanding was supported by the law from the Bhasin decision of the Supreme Court. He concluded that the appellant breached the ICA by terminating it in the way and the circumstances that he did.” The Court went on and stated: “I agree that although the appellant had a facially unfettered right to terminate the contract, it had an obligation to perform the contract in good faith and therefore to exercise its right to terminate the contract only in good faith.” [para. 18, underlining added.] The plaintiff had disclosed his criminal conviction prior to entering into the contract. Accordingly, the termination of the ICA one month later was not a good faith exercise of its contractual discretion. The ONCA decision was followed by the BC Supreme Court in Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940, 2018 CarswellBC 2987, 301 A.C.W.S. (3d) 293, 87 B.L.R. (5th) 130.
read moreBCCA: CERB BENEFITS NOT DEDUCTIBLE FROM WRONGFUL DISMISSAL DAMAGES
The plaintiff-employee appealed the trial judge’s decision to deduct CERB payments from her damages award for wrongful dismissal (and to decline to award punitive damages). The BCCA allowed the appeal with respect to the CERB payments, applying the Supreme Court of Canada’s decision in IBM Canada Ltd. v. Waterman, 2013 SCC 70. That decision arose in the context of pension benefits. The Supreme Court of Canada noted: “a potential compensating advantage problem exists if the plaintiff receives a benefit that would result in compensation of the plaintiff beyond his or her actual loss and either (a) the plaintiff would not have received the benefit but for the defendant’s breach, or (b) the benefit is intended to be an indemnity for the sort of loss resulting from the defendant’s breach.” The Court of Appeal noted that “The purpose of the CERB Act was to provide emergency aid to Canadian workers who lost all or a significant portion of their income for a variety of reasons related to the pandemic” (para. 41). The Court of Appeal found that CERB payments were similar to EI benefits (Jack Cewe Ltd. v. Jorgenson, [1980] 1 S.C.R. 812, 1980 CanLII 177). The Court concluded:
[62] Overall, the underlying logic of the compensating-advantage problem addresses a situation in which the individual employee is better off after their employer’s breach than before. I cannot conclude that this is the result if CERB is not deducted. CERB was an emergency measure delivering financial aid during the early weeks and months of an unprecedented global pandemic. The program’s goal was to mitigate harm to individuals in a moment of great uncertainty. CERB payments notwithstanding, many people lost their livelihoods as a result of the pandemic. It strikes me as out of step with that reality to conclude that the combination of CERB and damages awards leaves individuals “better off” after their employment was terminated than before.
read moreBAD FAITH CONDUCT BY EMPLOYER AFTER TERMINATION – PRICE TAG: $25K IN AGGRAVATED DAMAGES AND $35K IN PUNITIVE DAMAGES
However, the court did award aggravated and punitive damages. The defendants’ bad faith conduct did not result in the extreme consequences. Fobert’s mental distress was quite intense initially, with the help of counselling and no doubt her own resilience, she improved and recovered quickly. In light of the compensatory purpose, the court awarded her $25,000 in aggravated damages. At the same time, the court considered that, despite the award of aggravated damages, punitive damages were also necessary to effectively deter and also to denounce the range of misconduct in this case. Applying the principle of proportionality and considering the facts relevant to the relevant dimensions, the court awarded $35,000.
read moreEMPLOYER CONSTRUCTIVELY DISMISSED EMPLOYEE ON MATERNITY LEAVE – CONTRAVENED HUMAN RIGHTS CODE
THE TRIBUNAL REASONED: In Bateman v. Prime Time Sports, 2012 BCHRT 230, the Tribunal explained that discrimination may be established where an employer terminates the complainant’s employment while on a Code-protected leave because it prefers their replacement. But for the leave, the employer would have no opportunity to prefer a replacement employee: paras. 70-80. While Mr. Wall had not worked with Ms. LaFleche, his successful working relationship with Ms. Callahan arose only because of Ms. LaFleche’s maternity leave. The only conclusion can be that Ms. LaFleche’s maternity leave was a factor in her removal from her role and in the constructive dismissal. Neither would have happened but for the Code-protected leave.
read moreHUSBAND INSERTED HIMSELF INTO EMPLOYMENT DISPUTE – TERMINATION DID NOT CONTRAVENE THE BC HUMAN RIGHTS CODE
The Tribunal found that the respondents terminated her employment because of the behaviour of her husband over the course of the text exchange between her husband and Sager related to her illness and absence. The respondents took the text messages to be threatening, including calling Sager “fuckin piece of shit!” The Tribunal noted that, while the termination might constitute wrongful dismissal, it did not violate the Code.
read moreESSENTIAL CHARACTER OF DEFAMATION AND CONSPIRACY CLAIM SUBJECT TO THE DISPUTE RESOLUTION IN THE COLLECTIVE AGREEMENT
“In Phillips v. Harrison, 2000 MBCA 150, the Manitoba Court of Appeal determined that defamatory statements are work‑related and subject to collective agreement arbitration considering: (1) the comments concern the employee’s character, history, or capacity as an employee; (2) the comments were made by someone whose job it was to communicate a workplace problem; and (3) the comments were made to persons who would be expected to be informed of workplace problems. While the BCCA noted that “the Phillips framework is a useful, but not exclusive, means of examining whether defamatory statements are subject to mandatory dispute resolution procedures within collective agreements. The broader Weber framework continues to govern.” Even if the Phillips framework did not indicate that defamatory statements are work‑related, it is necessary, for the court to “dig deeper to determine if the defamatory statements nevertheless arise out of the interpretation, application, administration or violation of the collective agreement.” [para. 36]”
read moreCanada Labour Code: other procedure for redress – Canada Human Rights Act
The Board found that “… that the complainant’s human rights complaint is substantially similar to his unjust dismissal complaint … that the human rights complaint mechanism and the broad remedies available under the Act provide real redress which could be of personal benefit to the complainant.” Accordingly, the Board was precluded from considering the present unjust dismissal complaint pursuant to section 242(3.1)(b). However, the CHRC could refer the complaint to the CIRB
read moreEMPLOYER ESTOPPED FROM DEFENDING WRONGFUL DISMISSAL
A former employee, who had been dismissed for cause, brought a successful employment standards complaint with respect to the dismissal. He also brought a wrongful dismissal action, defended on the basis of just cause. The plaintiff sought to have the defence struck as res judicata pursuant to Rule 9-5(1)(b) and (d). The complaint and civil action were commenced contemporaneously. Both parties had counsel although the defendant elected not to be fully represented for the employment standard process and elected to represent himself with the assistance of counsel for economic reasons and the small amount at stake in the complaint. The Court did not have much sympathy for the argument.
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