BarTalk | June 2019 Employment & Labour Law

June 2019 | bartalkonline.org

Employment & Labour Law WCB BULLYING AND HARASSMENT CLAIMS | CAUSE TO TERMINATE

FROM THE PRESIDENT MARGARET A. MEREIGH

Should the BC Civil Resolution Tribunal Be Part of the BC Provincial Court?

M

odernization of BC’s justice system, including our courts, is top of mind as public access and confidence demand a simple, cost-effective approach.

BC’s Civil Resolution Tribunal (“CRT”) is Canada’s first online dispute resolution (“ODR”) model offering information, negotiation, facilitation and adjudication services. CRT integration within BC’s Provincial Court will save money and simplify the system.

The Ministry of Attorney General and the Ministry of Public Safety and Solicitor General’s Service Plan 2018/19 – 2020/21 aims to streamline business practices, technology and alternative service delivery models (Objective 1.1), and to strengthen sustainability of the justice system and public safety sector through increased efficiency of resource management and effective human resource planning (Objective 3.1).1 Those objectives, along with considering user experience, complexity and cost, all favour integration.

USER EXPERIENCE: I applaud the

CRT’s user-centric design and propose seamless integration through all services. Once a claim initiates,2 CRT facilitators provide negotiation, mediation and case management3 services, and judges adjudicate trials. Integration resolves issues of procedural fairness and judicial independence.

CRT has no oral hearings – all decisions are based on written submissions, including findings of credibility.

The tribunal restricts judicial review by the courts to “patently unreasonable” decisions or unfair procedures. However, if the CRT and courts are integrated, decisions 2

BARTALK / JUNE 2019

would not be insulated and reviews would be on a question of law.

Lawyer appearances currently restricted by the CRT to Motor Vehicle Act claims could be expanded by integrating with the Provincial Court while encouraging users to resolve disputes with negotiation and mediation.

Judicial independence is established within the courts while CRT adjudicators are not independent – they are government employees who are appointed for 2-5 years and report to government.

COMPLEXITY: CRT

jurisdiction includes strata disputes, small claims, society and co-operative disputes, and minor injury claims under the Motor Vehicle Act. This patchwork of jurisdiction complicates the justice system for the user. Moreover, a user dissatisfied with a CRT outcome must re-start a claim in court. Here are the confusing and inefficient requirements for such a user: a

CRT strata decision and a Dispute Notice issued on or before December 31, 2018 requires leave to the BC Supreme Court, but a CRT strata decision and a Dispute Notice issued on January 1, 2019 or later, must meet a high judicial review threshold in the Supreme Court.4

a

CRT final decision in a small claims dispute requires a Notice of Objection filed with CRT within 28 days of the final decision and the filing of a Notice of Claim and a Certificate of Completion in the Provincial Court.

a CRT motor vehicle injury decision

must meet a high judicial review standard in the BC Supreme Court.

COST: Court registries supported by

BC Court Services (“CSB”) are not modern, partly due to limited resources. The 2019/2020 budgets for CSB and CRT are $110,498 million and $10.5 million respectively. The CRT budget is expected to grow to $24.5 million (20/21) and $29 million (21/22).5 Public funds support two separate systems.

A consequence is CRT technology is incompatible with CSB tech despite being part of the same ministry. This siloed approach means a user cannot electronically file CRT materials in the courts.

An ODR system was recently developed in the UK under the auspices of the courts6 and similarly, the CRT should be part of the BC Provincial Court. The government’s stated commitment to streamlining business processes and efficiently using resources supports CRT integration within the Provincial Court.

Ministry of Attorney General and Ministry of Public Safety and Solicitor General 2018/19 – 2020/21 Service Plan. bit.ly/bt0619p2-1 2 The system design would have alternative options for those users who are unable to use an online system.

3 Case Management is currently performed

by Provincial Court judges.

4 bit.ly/bt0619p2-2 5 bit.ly/bt0619p2-3 6 bit.ly/bt0619p2-4 1

Margaret A. Mereigh

president@cbabc.org

JUNE 2019

VOLUME 31 / NUMBER 3

Contents

Departments

2 FROM THE PRESIDENT

Should the BC Civil Resolution Tribunal

Be Part of the BC Provincial Court?

by Margaret A. Mereigh 5 EXECUTIVE DIRECTOR

Resetting Land Acknowledgments

by Kerry Simmons, QC 8 INDIGENOUS MATTERS

Recent Amendments to “Modernize”

the Federal Employment Legislation

by Chaslynn Gillanders 9 Indigenous Mother Alleges Discrimination

Against the Vancouver Aboriginal Child and

Family Services Society

by Frances Rosner 14 PRACTICE TALK

Recognizing Different Strengths

by David J. Bilinsky 15 DAVE’S TECH TIPS 28 NOTHING OFFICIAL

Valar Morghulis

by Tony Wilson, QC

Sections

12 SECTION UPDATE

Employment Law u Labour Law

Features 6

7

10

11

WCB BULLYING AND HARASSMENT CLAIMS

by Adam Picotte IS THERE JUST CAUSE TO TERMINATE MY EMPLOYEE?

by Cam Wardell TEACHERS UNDER THE MICROSCOPE

by Stefanie Quelch THE CONTINUUM FROM EMPLOYEE TO CONTRACTOR

by Claire Pagé

16

18

WHEN EMPLOYEES LEAVE FOR A COMPETITOR

by Dean A. Crawford, QC DENIAL OF DISABILITY BENEFITS DOES NOT MEAN AN EMPLOYEE IS FIT TO RETURN TO WORK

by Anita K. Atwal

26 AN EMPLOYEE AND A MACHINE AT A WORKPLACE

by Lisa Picotte-Li 30 BEST PRACTICES IN HARASSMENT

TRAINING FOR 2019

by Sara Forte and Pamela Costanzo 31 ‘DIS’ RESPECTING THE

WORKPLACE INVESTIGATION

by Lisa Southern and Jillian Humphreys

Inside This Issue Learn about the age-old “just cause, or just ‘cause’” question: what can employers do to protect themselves from wrongful dismissal suits; what makes someone an employee, dependent contractor, or independent contractor; conduct surrounding disabled employees; and how to conduct a proper workplace investigation. What can, could, and should an employer do when an employee leaves for a competitor? Learn about harassment and bullying in the workplace, its consequences, and how to avoid it; amendments to federal legislation and its impact on First Nations and band offices; and why the CBABC’s ALF says the Indigenous Languages Act is a “hollow promise.” Read commentary on potential integration of the CRT with Provincial Court; stepping up our game on land acknowledgements; CBABC advocacy on gowning policies for pregnant lawyers; and the role, impact, and future of the discipline function of the Teacher’s Regulation Branch. Read about the first “openly autistic” lawyer; recent responses to climate change and how they relate to rule of law; and creative ways to dispose of your earthly remains (with plenty of puns).

— Brandon D. Hastings, BarTalk Chair

News and Events 4 8th Annual ALF Retreat & the 12th National Indigenous Peoples Day Auction Reception 20 Recommendations to Improve Indigenous Child Welfare Bill

Dial-A-Lawyer Day 2019 Stats 21 Law Week 2019 Recap 22 BC WLF News: Pregnancy at Trial: BC’s Outdated Gowning Policy

CLEBC Update 23 BC Legislative Update

Branch & Bar Calendar

The Ban Against Oil Tankers: Pleasing No One 24 Climate Emergencies and the Rule of Law

Tips from Courthouse Libraries BC

Also in This Issue

25 LAW FOUNDATION OF BRITISH COLUMBIA 32 PROFESSIONAL DEVELOPMENT 33 DISPLAY ADS 34 BAR MOVES 35 NEW MEMBERS JUNE 2019 / BARTALK

3

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Brandon Hastings

EDITORIAL BOARD MEMBERS

George Hungerford Eryn Jackson Kevin Kitson Kirsten McGhee Lisa Picotte-Li Craig Stewart Crystal Tomusiak Donna Turko, QC Sean Vanderfluit

BARTALK SENIOR EDITOR

Carolyn Lefebvre

STAFF CONTRIBUTORS

Travis Dudfield Kent Hurl Christopher LaPrairie Michelle May Sanjit Purewal Stuart Rennie Kerry Simmons, QC Judy Yen

Thursday, June 20, 2019 Aboriginal Lawyers Forum 8th Annual Retreat 9:15 a.m. - 5:00 p.m.

12 National Indigenous Peoples Day Auction Reception & the

th

featuring the dance troupe, Butterflies in Spirit

5:00 p.m. - 7:00 p.m.

River Rock Casino Resort, 8811 River Road, Richmond, BC RETREAT THEME: Promises, Prosperity and Justice – How the law can impact economic prosperity for Indigenous peoples Sessions to look forward to:

The Promise of Jericho (property development);

Perspectives on Resource Development,

The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3

including that of Skeena MLA Ellis Ross (Haisla);

The Promise of Consultation;

Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2019.

This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel.

The British Columbia Branch of the Canadian Bar Association represents nearly 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

BarTalk Publication Sales Agreement #40741008

4

BARTALK / JUNE 2019

The Promise of Financial Management; and

The Certainty of Taxes

The Retreat will include an evening reception to celebrate National Indigenous Peoples Day 2019, featuring the dance troupe Butterflies in Spirit. Since 2012, the mission of Butterflies in Spirt has been to raise awareness of violence against Indigenous women and girls and the Missing and Murdered Indigenous Women and Girls across Canada.

Donations are being accepted for the ALF’s 12th Annual National Indigenous Peoples Day Auction, which will run online June 20–28, 2019 at 32auctions.com/NIPD2019.

MORE INFO

Write Us Send your Letter to the Editor to: Deborah Carfrae – BarTalk Editor bartalk@cbabc.org

bit.ly/bt0619p4-1

Membership Enquiries members@cbabc.org

Advertising Opportunities

Info Changes

ads@cbabc.org

data@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Resetting Land Acknowledgments

“

We acknowledge that we have gathered on the traditional and unceded territory of the… .”

And so…???

Since the Truth & Reconciliation Commission’s Calls to Action were released in 2015, more and more non-Indigenous peoples, and many governments and organizations, including the CBABC, have embraced the practice of acknowledging the Indigenous peoples on whose traditional territory an event takes place. The practice among Indigenous peoples to acknowledge the territory, language and culture of another group when visiting them and their land dates back centuries.

As more and more non-Indigenous peoples seek to learn the truth of Indigenous peoples as a foundation for a journey of reconciliation, the practice of making a land acknowledgment has become part of those efforts, a small, but important and useful step. By seeking information about the land and the Indigenous peoples who were part of that land when settlers came to Canada, we have the opportunity to learn about the experiences of Indigenous peoples in the area, their relationship with the land, and the history of the Indigenous peoples and settlers.

But for many people, the land acknowledgment has become a little too informal, seemingly devoid of that positive purpose, or perhaps in fact, incomplete. When those hearing it feel like the acknowledgment was part of a checklist or was said so quickly that the content became meaningless, we must change what

we say, how we say it and what we do in follow-through. If we have now learned the basic fact of whose traditional territory it is, the next step is to share more information or for the speaker to share what this means to them. With this addition, those gathered may be inspired to learn more or think about the relationship between Indigenous and non-Indigenous peoples in that area.

So, over the next few months as CBABC supports its volunteer leaders of Sections, committees and Provincial Council, the “resetting” of the land acknowledgment in our work will be part of the conversation. We will talk about why we make the acknowledgment, how to do it, and be proactive in encouraging further discussion.

Last June our Truth & Reconciliation Working Group presented its Final Report to Provincial Council.

Over the past eight months, we incorporated the Report’s directions throughout CBABC’s member services, advocacy, volunteer leadership development, and staff education.

This is not a one-year plan, rather it is a dynamic, ever-evolving enhancement of what our association does and how it does it.

This summer, the Reconciliation Response Plan resource for law firms will be available to help lawyers incorporate the Calls to Action in their business. New professional development webinars and archived recordings will launch in the fall. We are strengthening our relationship with the BC First Nations Justice Council

(“BCFNJC”) to advance our Agenda for Justice initiatives that align with the BCFNJC in the areas of restorative justice, Indigenous courts, child protection reform, and more.

Our work today rests on the work of the Aboriginal Lawyers Forum (“ALF”), which facilitates social networking, mentoring, professional development and a celebration of Indigenous culture for Indigenous lawyers, law graduates and law students and those who support that mandate. On June 20, in Richmond, ALF hosts the 12th Anniversary National Indigenous Peoples Day Reception and Auction (see page 4 and bit. ly/bt0619p5-1 for more information). Featuring Butterflies in Spirit, a Vancouver dance group, the Reception and Auction allows us to gather together in reflection and celebration, while raising funds in support of Indigenous law students.

The online auction 32auctions.com/ NIPD2019 is open for a week and you can bid on items from anywhere in the province. Also on that day, ALF presents the 8th Annual Retreat on the theme of “Promises, Prosperity and Justice: How the law can impact economic prosperity for Indigenous peoples.”

See you there.

Kerry L. Simmons, QC

ksimmons@cbabc.org JUNE 2019 / BARTALK

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ADAM PICOTTE

WCB Bullying and Harassment Claims The high threshold for compensation

T

he Workers Compensation Act (“WCA”) provides a complex regime for compensating workers for bullying and harassment in the workplace.

The legislative requirements are set out at Section 5.1 of the WCA1 with interpretations of the legislative requirements contained at Chapter 3, Policy 13 of the Rehabilitation Services & Claims Manual, Volume II. 2 The WCA and related policies can have the effect of setting up barriers for compensation that limit the scope for when compensation is made payable to workers who have been bullied and harassed. There is a basic threshold for all claims, including those involving bullying and harassment, for there to be a disability, injury, or disease in order for compensation to be triggered.

However, the test for causation for bullying and harassment is that of a predominant cause. This means that the bullying and harassment must be the primary or main cause. The predominant cause test is a higher threshold than other places in the WCA. For instance, those suffering a physical injury must demonstrate only that the causal factor in the workplace was of causative significance or more than de minimis.

This creates a disparity between those seeking compensation for physical injuries and those suffering from psychological injuries under the same compensation system. Although a challenge has yet to be made on judicial review, this disparity results 6

BARTALK / JUNE 2019

in more proof being required for psychological injuries than physical injuries. This is arguably a breach of the Charter.

A second barrier for compensating bullying and harassment is that a diagnosis of a disability, injury, or disease must be made by either a psychiatrist or psychologist and must be described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis. A diagnosis from a specific type of medical provider is unique to Section 5.1 of the WCA. Cancer does not need to be diagnosed by an oncologist nor a fractured foot by a podiatrist. Mental Disorder claims, however, are required by the WCA to be diagnosed by a specific type of medical provider. This is particularly problematic in rural communities where a lack of psychological resources has been noted by the BC Psychological Association.

A third barrier for compensation is what is commonly referred to as the labour relations exception. Section 5.1(1)(c) of the WCA sets out that compensation will be provided if the bullying and harassment is not caused by a decision of the worker’s employer 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 worker’s employment.

Under this language, a worker who has been overburdened with work expectations, not provided with sufficient resources and time, and then terminated for not meeting these expectations would not be able to seek compensation if a disability results.

The labour relations exception has been used in questionable denials by WorkSafeBC case managers to deny compensation. For example, the exception has been used to deny compensation when workers have been referred to by racial epithets. In 2014, a Workers’ Compensation Appeal Tribunal Vice-Chair, over-turned a decision by a case manager who denied compensation for bullying and harassment when a worker was referred to and called a “token Indian” by her manager. The imposition of the labour relations exception creates a high threshold for workers suffering from mental disorders.

Its purpose is to bar all but the most egregious actions from giving rise to compensation; again, something not present for other types of compensation.

Recent amendments to the WCA have resulted in greater access to compensation for some mental health claims. However, these amendments have not addressed the impositions placed upon workers seeking compensation for bullying and harassment claims. It remains difficult to obtain compensation for bullying and harassment claims, which is particularly problematic given their close link to mental health concerns.

1 2

bit.ly/bt0619p6-1 bit.ly/bt0619p6-2

Adam Picotte is a labour lawyer focusing on complex disability management claims at the HSABC and through LT Thomas Advisors.

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CAM WARDELL

Is There Just Cause to Terminate My Employee?

Getting your employee’s side in a professional and unbiased investigation may also protect against claims for aggravated or punitive damages if you cannot establish cause at trial.

The top 10 questions employers should ask

7. WHAT ACTUALLY HAPPENED?

1

Once you’ve gathered information from your workforce, documents and the employee, you should make a determination as to what you think happened. Common sense and a more broad assessment of candour play big roles in this assessment.

Employers are not without tools to make determinations where there are two contradicting views.

WHAT IS THE ISSUE?

It is important to identify the specific issue leading the employer to consider dismissal for cause. Often, situations of unpleasantness between employer and employee will deteriorate to the point that an employer’s desire to terminate manifests from general unhappiness as opposed to specific misconduct. There are many cautionary tales from cause alleged on vague or unclear grounds.

A clear concept of the wrongdoing or issues will also frame how you proceed – the process will be very different where an employee has been struggling with attendance or performance for some time, as opposed to if the employee engaged in theft or interpersonal harassment on specific dates.

2. WHAT IS MY SOURCE OF INFORMATION?

The source of information can be important both for discussing issues with your employee and – if it comes to it – proving your case in court. Employers should investigate rumours with those who witnessed things firsthand. Occasionally, employees will not want to discuss misconduct they witnessed. A variety of situations will justify an employer directing an employee to attend meetings and answer hard questions about workplace issues.

3. WHAT DOES THE EMPLOYMENT CONTRACT SAY?

A review of your employee’s written contract (if there is one) is critical.

The contents may reference misconduct, procedures or policies and may also let you know what the risk looks like if you are wrong about cause.

4. WHAT DO MY POLICIES SAY?

Policies may prohibit particular conduct or set criteria for workplace tasks. Policies may also prescribe a manner or process of investigations and discipline. Even if the policy is not enforceable against an employee, it may bind your actions in dealing with misconduct.

5. ARE MY POLICIES ENFORCEABLE?

Ensuring policies are enforceable takes some work but can be worthwhile. If you intend to discipline an employee for breach of a written policy, that policy must be known to the employee, clear, distributed widely, consistently enforced and reasonable.

It must also warn of discipline and/or dismissal to justify those actions.

6. WHAT DOES MY EMPLOYEE SAY?

Discussing allegations of misconduct with employees is one of the most important steps for employers in contemporary times. Getting your employee’s side of things can help you ascertain what happened (and what you can prove happened) and whether your employee knew it was wrong (and/or if they knew about the policy). From time to time, cause may even arise from dishonesty in the course of an investigation.

8. HOW BAD IS IT, REALLY?

With your assessment of the facts in hand, take a step back and consider not only how you see it, but how others might. Are there ambiguities in the policies? Was this an honest mistake? Is there a risk if this employee remains in the workplace?

9. SHOULD I WARN MY EMPLOYEE?

This question is tied closely to the two preceding. If the issue relates to performance or conduct that is arguably non-malicious, a warning with objective expectations is virtually always necessary. Dismissal without warning may be warranted where clearer issues of interpersonal misconduct, safety or dishonesty are at play.

10. IS THERE SOMETHING I MISSED?

As in any area of law, there are nuances that can’t be explained in 625 words.

Employment practitioners offer helpful guidance. I know at least one.

Cam Wardell is a lawyer at Mathews, Dinsdale & Clark’s Vancouver office and is the current Chair of the CBABC Civil Litigation (Vancouver) Section.

JUNE 2019 / BARTALK

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Indigenousmatters CHASLYNN GILLANDERS

Recent Amendments to “Modernize” the Federal Employment Legislation

First Nations and band councils will need to amend employment policies to address legislative changes

O

n December 18, 2018, Bill C-86 (the “Bill”), which includes amendments to the Canada Labour Code (the “Code”), received royal assent.

Much like many of the provinces, the federal government undertook a review of the Code in an effort to “modernize” the legislation. Some of these amendments will be in effect on September 1, 2019, while others will be in effect on a future date that has not been determined.

Although the Supreme Court of Canada’s decision in NIL/TU,O Child and Family Services Society v. BC Government and Service Employees’ Union, [2010] 2 S.C.R. 696 narrowed the application of the Code within First Nation and band council workplaces, many employees of First Nations and band councils continue to be governed by the Code and will see their employment significantly impacted by these amendments.

Although there will be a number of amendments to the Code arising from the Bill, the issues identified within this article highlight the amendments that are likely to impact First Nations and band councils in particular.

EFFECTIVE SEPTEMBER 2019

Presently, in order for an employee to be eligible for certain types of leave (e.g. maternity, parental, critical illness) that are provided for pursuant to the Code and to be eligible for statutory holiday pay, employees are required to have 8

BARTALK / JUNE 2019

completed a minimum period of service. The Bill removes the minimum required period of service.

The Bill provides for an increase in employee vacation entitlement and pay. Employees will now be eligible to receive three weeks vacation (or 6%) after completing five years of service (previously six years). The Bill introduces an additional level of vacation entitlement that does not currently exist for employees with more than 10 years of service.

Employees with at least 10 years of service are entitled to four weeks vacation (or 8%).

Employees are permitted to have unpaid leave for an unlimited period of time to be a witness in court or participate in activities related to jury duty.

IN EFFECT ON A FUTURE DATE

The notice or pay in lieu of notice of termination of employment that is provided to federally-regulated employees will now be one week per year of service to a maximum of eight weeks for eight years of service.

The Bill includes a new Pay Equity Act, which requires federally-regulated employers with 10 employees or more to develop a pay equity plan to examine and address any pay inequity that may exist among employees of the same job class whether it is due to gender or the status of the employee (e.g. temporary worker).

The Bill provides employees with unpaid personal leave (personal sick leave, tending to the health or education issues of a family member) of up to five days and if the employee has completed three months of service, the first three days will be paid leave.

Upon completing three years of service, employees will be eligible for paid leave of up to five days to address issues related to family violence.

RECOMMENDED NEXT STEPS

While the timeframe for the implementation of some of the amendments has not been determined, federally-regulated employers should be prepared to implement the changes required by the Bill. It is a great opportunity for First Nations and band councils to undertake a review of their employment policies and practices to ensure they meet or exceed the minimum standards as set out in the Code.

We are in a time where there is growing concern about mental wellness. Improving the protections for employees is an important component of wellness in the workplace. It is important for employees to be provided with leave to attend to the personal issues that arise, so that they are more focused and productive when they report to work.

Chaslynn Gillanders is Nisga’a and practises law in Vancouver at the law firm of Callison & Hanna.

FRANCES ROSNER

Indigenous Mother Alleges Discrimination Against the Vancouver Aboriginal Child and Family Services Society On April 30, 2019, the British Columbia Human Rights Tribunal (“Tribunal”) decided that it will hear a complaint filed by a First Nations mother, RR, against the Vancouver Aboriginal Child and Family Services Society (“VACFSS”) for discrimination. RR alleges that VACFSS, discriminated against her based on race, ancestry, colour, and mental disability contrary to s. 8 of the Human Rights Code.1 In particular, that RR alleges VACFSS relied in part on “stereotypical and prejudicial assumptions” related to her mental health and status as an Indigenous woman to deny her custody of her four children and place restrictions on her access. Further, RR argues that VACFSS failed to accommodate her cultural and disabilityrelated needs and instead relied on her protected human rights characteristics to create barriers for the return of her children to her care.

The barriers imposed by VACFSS included the requirement to undergo a parental capacity assessment and complete trauma counselling before restrictions on access to her children could be lifted. The restrictions on RR’s access included micro-managing the supervised visits and being accountable to VACFSS for all decisions related to her children, including how long her infant daughter could spend in the stroller. In meetings with social workers, RR alleges that VACFSS made discriminatory assumptions about her capacity to parent on account of her status as an intergenerational residential school

survivor and her diagnoses of post-traumatic stress disorder, anxiety and depression.

VACFSS denies these allegations and argues that at all times, it was acting within its authority under the Child, Family and Community Service Act in keeping with the best interests of the children. VACFSS applied to dismiss RR’s complaint, alleging there was no evidence capable of linking its conduct in the matter to any ground of discrimination. The Tribunal member, Devyn Cousineau disagreed and found that the substance of RR’s complaint went beyond the “realm of conjecture,” and a full hearing was ordered to assess the case on its merits.

The evidence must prove: 1) that RR has characteristics protected under s. 8 of the Code; 2) that she was treated adversely or adversely impacted respecting VACFSS’s services; and 3) that her protected characteristics were a factor in the adverse treatment or impact. Upon doing so, the burden to establish a bona fide reasonable justification for its conduct shifts to VACFSS. The facts supporting the first two grounds were not heavily contested by the parties.

According to the Tribunal, this case will turn on the third ground and the need for RR to establish the requisite connection – express and by inference, between the adverse treatment or impact and her protected characteristics.

Further, the discrimination analysis requires that VACFSS, in addressing a parent’s legitimate circumstances and needs, did so “on their true merits, untainted by stereotype, and taking all reasonable and

practical steps to accommodate [RR’s] Code-related needs before concluding that nothing more is possible.” Tribunal member Cousineau acknowledged that “racism is usually the result of subtle and unconscious beliefs, biases, and prejudices, which people do not display openly.” However, in her view, the Tribunal may draw an inference of discrimination if it determines that “RR was subjected to an unreasonably strict parenting standard, particularly compared to the foster homes where the children had experienced abuse and had engaged in serious self-harm.”

RR’s eight-year-old daughter attempted suicide in foster care, and there was a further incident of abuse against her 6-year-old daughter in foster care that was substantiated. In these incidences, the children were temporarily removed from the foster home and later returned against RR’s objections.

In weighing all the factors, member Cousineau took notice of the “notorious overrepresentation of Indigenous children in foster care” and attributed the cause of this systemic issue in part to “Canada’s historic oppression of Indigenous people[s] based on their race and ancestry.” Although neither party raised this broader social context in their arguments, the parties were advised that this is a factor that the Tribunal must be alive to in its final decision.

R.R. v. Vancouver Aboriginal Child and Family Services Society (No. 2), 2019 BCHRT 85 1

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

JUNE 2019 / BARTALK

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STEFANIE QUELCH

Teachers Under the Microscope Increased scrutiny of the teaching profession

T

eachers play an important role in the lives of their students. Parents entrust teachers to impart knowledge to their children and to ensure their children’s safety and well-being. While they are aware that they are held to a high standard given the nature of their position, teachers are under ever-increasing scrutiny, even with respect to their personal lives and their off-duty conduct. In the midst of a teacher shortage in this province, particularly in smaller communities, this increasing scrutiny may have some prospective teachers thinking twice about entering the profession.

The most obvious scrutiny on teachers comes from their employers.

Over the past several years, workplace investigations have expanded, and an increasing number of school districts are hiring outside investigators to handle investigations. This means that an issue that may have previously resulted in an administrator simply discussing an issue with a teacher turns into a formal, lengthy investigation.

Aside from investigations initiated by their employers, teachers in this province must apply for a teaching certificate. These are issued by the Teacher Regulation Branch (“TRB”), which is a branch of the Ministry of Education. The TRB is not only responsible for issuing teaching certificates, but the Commissioner of the TRB oversees professional conduct of teachers.

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BARTALK / JUNE 2019

While many professions in BC are regulated (lawyers, doctors, dentists and nurses to name a few), almost all discipline imposed on teachers by their employers is reported to the TRB for further scrutiny to determine whether the conduct amounts to professional misconduct. In many circumstances, additional discipline is imposed.

Not only do matters end up before the TRB following discipline by an employer, but any member of the public can file a complaint against a teacher with the TRB. These complaints sometimes have nothing to do with a teacher’s work. For example, a confrontation with a neighbour or strata has led to complaints to the TRB. While matters that do not relate to a teacher’s work are usually eventually dismissed, it takes multiple months, often more than a year, for this to happen.

Any discipline imposed by the TRB, either by way of a consent resolution agreement or a decision by a hearing panel, is posted on the TRB’s website. In recent years, the large majority of discipline outcomes posted has resulted in at least one but usually multiple news outlets running stories naming the teacher and the discipline that has been imposed, even if that matter does not involve students. The same level of media scrutiny is not placed

on other professions. While many professions post discipline outcomes regarding their members on their websites, the media highlights some of the more sensational cases, but generally they do not run stories each and every time a new discipline outcome is published. The legal profession is a prime example. While some Law Society disciplinary decisions garner some media interest, the majority do not.

Although the employer and regulatory body proceedings are the most common forum for complaints against teachers, in some circumstances, teachers may face overlapping proceedings all relating to the same incident.

These could include investigations and/or discipline by the employer, the TRB, criminal or civil matters, internal union proceedings, or matters before other administrative bodies.

As a result of the increasing demands and expectations that have been placed on teachers, there has been a significant increase in the level of legal services required by teachers to assist them in navigating the variety of proceedings that they face. As the structures for supervising and regulating teachers grow increasingly complex and legalistic, advocates for teachers need to push for reasonable boundaries on the scope of inquiries, and proportionality with respect to the scale of proceedings and the severity of penalties.

Stefanie Quelch is Legal Counsel at the British Columbia Teacher’s Federation. The views above are those of the author.

feature CLAIRE PAGÉ

The Continuum from Employee to Contractor Independence is in the eye of the beholder

M

ost business principals assume they know the difference between an employee and an independent contractor and often hire one or the other to provide services required. It is critical to maintain boundaries in an arrangement involving an independent contractor, because reclassifications of the role are common and can be very costly to the principal.

There is also an intermediate classification; a lesser known entity called the dependent contractor1.

If the principal’s business relationship is not clearly with an independent contractor, it will be deemed to be with a dependent contractor or with an employee, both of which attract significant obligations from the principal. These obligations are often imposed by the Employment Standards Tribunal, the Human Rights Tribunal, the Worker’s Compensation Board, the Canada Revenue Agency and the courts, and each of these entities has similar but not identical tests to discern the true nature of the relationship.

An employee provides work for the employer pursuant to an employment contract. The principal usually controls where, how, and when the employee provides services and the employee often (but not always) works exclusively for the employer. This relationship is governed by the employment contract, the common law, and by legislation which

provides minimum standards for safety, hours, wages, holidays, vacation, leaves, and provision of notice.

The employer retains the power to manage and alter these conditions as long as they comply with applicable law in British Columbia, including the Employment Standards Act [RSBC 1996] c.113, the Human Rights Code [RSBC 1996] c. 210, and the common law. Simply put, the employee is working for the principal, rather than working for themselves.

A dependent contractor provides services pursuant to a contract for services. The BC Employment Standards Act does not apply to dependent contractors but the Employment Standards Tribunal often determines whether an arrangement is actually an employment relationship. The BC Human Rights Code will also govern relationships if the agent is largely exclusive to one principal. If the relationship is marked by economic dependence and the contractor is sufficiently integrated into operations over time, independent contractors can silently transform into dependent contractors despite other hallmarks of an independent contractor arrangement. The dependent contractor appears to be working for themselves, but is economically reliant on the principal which can result in a severance award upon termination of their services.

An independent contractor also provides services pursuant to a contract for services. The parties have rights and responsibilities arising only out of the conditions of the contract, and are not subject to employment or human rights legislation or employment common law. The contract is essentially between two equal business entities that have freedom to contract and manage the relationship. Independent contractors are clearly in business for themselves.

Simply labelling the arrangement as one involving an independent contractor will not be determinative. Courts and tribunals look for common markers of dependence such as: exclusivity of the parties; level of control by the principal; whether the principal owns the tools required for the services; whether the principal is the only party risking loss and reaping profit; whether the contractor’s services are “part of the business”; the level of integration between the parties; and the permanency of the relationship.

The crux of the question is whether the party is providing the services on their own behalf or for the principal. Business principals should keep this distinction in mind at the time of hiring and throughout the business arrangement, regardless of what the arrangement was initially intended to be.

The brevity of this article prevents any discussion on the relationships subject to The Canada Labour Code RSC 1985, the BC Labour Relations Code [RSBC 1996] chapter 244, and the BC Worker’s Compensation Act [RSBC 1996] chapter 492.

1

Claire Pagé is a partner at Jones Emery in Victoria, BC and practises employment and human rights law.

JUNE 2019 / BARTALK

11

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Employment & Labour Law in Canada Employment Law in Review 2018-2019

To watch our speakers provide insights on these matters, please visit: bit.ly/bt0619p12-2.

uuu On January 25, 2019, the Section gathered to hear about class action lawsuits and examine best practices, while considering current and emerging cases and trends in employment law.

Labour Law in Review 2018-2019

For an introduction to class actions, policies underlying class actions and employment law, a thorough examination of case studies in employmentrelated class actions, and strategies and considerations for commencing and defending a class action lawsuit, visit: bit.ly/bt0619p12-3.

Of the 76 Sections the CBABC has formulated with the assistance of dedicated volunteers, the Employment and Labour Law Sections have been a working body of the CBABC for a long time, boasting an impressive 1000+ enrolled Section members between the two. Whereas the CBABC Labour Law Section covers law governing the employer/employee relationship, including the establishment of employment standards, trade union organization and the principles and practice relating to the negotiation and enforcement of collective agreements and the arbitration and settlement of labour disputes, the CBABC Employment Law Section deals with employment law issues in non-unionized workplaces.

Employment Law On October 18, 2018, the

uEmployment Law Section kicked

off the 2018-2019 term co-hosting a meeting with the Civil Litigation – Vancouver Section for a panel discussion of the BC Court of Appeal’s (“BCCA”) decision in Rosas v. Toca,

12

BARTALK / JUNE 2019

uuu On December 12, 2018, in light of the legalization of cannabis, the Employment Law Section held a meeting to consider legalization in respect to occupational health and safety regulations, an employer’s duty to accommodate, permissible drug testing, and best practices for drafting and implementing drug and alcoholic policies.

2018 BCCA 191, where the BCCA re-wrote the law of consideration in the context of the modification of existing contractual arrangements.

To watch our panelists provide their views on the implications of this decision and its application in a variety of contexts, please visit: bit.ly/bt0619p12-1.

uuu On March 7, 2019, the Employment Law and the Young Lawyers – Lower Mainland Sections welcomed experienced practitioners who have successfully opened their own practices to discuss their experiences and share advice for lawyers interested in developing an employment law practice in British Columbia.

To learn more about opening your own practice and for first-hand advice on things you can do to prepare or plan for such a transition, please visit: bit.ly/bt0619p12-4.

uuu On April 23, 2019, the Section provided a general overview of constructive dismissal situations

and the applicable legal test, focusing their discussion on the practical considerations when making and defending constructive dismissal claims. This included how employers can avoid and respond to constructive dismissal situations, how and when employees can elect to treat themselves as being constructively dismissed, the practicalities of mitigation offers, how to measure damages, and other practical and legal tips to manage significant changes in the workplace.

To watch this in-depth presentation, please visit: bit.ly/bt0619p13-1.

uuu What is one need-to-know for all employment lawyers? How to use the Employment Insurance (“EI”) adjudication process! On May 22, 2019, the Section welcomed a former EI adjudicator, to discuss how both employer and employee counsel can use the EI adjudication and appeal process to advance their clients’ interests beyond the adjudication process. This discussion included tests applied by the EI Commission to determine whether an employee has been dismissed for misconduct or was justified in quitting employment; what to expect at each stage of the adjudication/appeal process; and reported cases where counsel were successful/unsuccessful in raising an estoppel argument.

To access the minutes for this thought-provoking presentation, please visit: bit.ly/bt0619p13-2.

Labour Law On September 25, 2018, the

uCBABC Labour Law Section

welcomed in the new term by hosting their much-anticipated and

sold-out Annual BC Labour Relations Board (“BCLRB”) “Bear Pit.” Madam Chair de Aguayo and other members of the BCLRB, invited attendees input on how the Board is doing. The BCLRB also provided guests with an overview of the previous year while identifying some procedural challenges going forward. As with every “Bear Pit” event, the BCLRB asked to hear from attendees about effective processes for change and consultation with respect to the Board’s rules and processes in the event of possible legislative change(s).

Minutes for this meeting can be viewed here: bit.ly/bt0619p13-3.

uuu Drug and alcohol testing, and imposing discipline based on the results, has long been a contentious issue in workplace law. On December 8, 2018, the Section discussed Stewart v. Elk Valley Coal Corp., 2017 SCC 30, where the Supreme Court of Canada held that the termination of an employee with a cocaine addiction was grounded in the employee’s breach of a drug and alcohol policy, and did not amount to discrimination prohibited by human rights legislation. A number of fact-specific considerations relating to the employer’s policy, the available medical evidence, and the safety sensitive context of the worksite were crucial to the court’s determination.

For an analysis and key takeaways from the case, as well as an update as to how the case has been recently applied, please visit: bit.ly/ bt0619p13-4.

uuu On March 14, 2019, the Section came together to discuss the history of the BC Labour Relations Code, from the drafting of the modern Code to changes in law, policy and practice over the years.

Facilitated by Arbitrator Jim Dorsey, QC, an interesting and historical perspective on how labour law has evolved in the province and beyond was provided. The Section also discussed the practical aspects of changes to both the economy and the legal landscape labour law is practised in today.

The recording can be found here: bit.ly/bt0619p13-5.

Join Sections!

CBABC Section enrollment for the 2019-2020 term is now open, and if you have not already selected your Sections for the coming term starting on September 1, 2019, login today and enroll in your preferred areas of practice or Sections you have an interest in exploring further.

Section enrollment is a benefit of CBA membership and is available only to CBA members, which provide you with access to meetings and events, legislative updates, and other relevant news about the Sections you have enrolled in.

BC members enrolled in this current Section term will automatically be re-enrolled to the new Section term. You may login to update your preferences at any time.

New and rejoining CBA members will need to manually enroll in Sections, which can be completed here uuu cbabc.org/ sections/enroll.

JUNE 2019 / BARTALK

13

practicetalk DAVID J. BILINSKY

Recognizing Different Strengths Challenging us with a different mindset r

You raise me up, so I can stand on mountains You raise me up to walk on stormy seas I am strong when I am on your shoulders You raise me up to more than I can be... r

– Music, Lyrics by B. Graham, R. Lovland, recorded by Martin Hurkens (bit.ly/bt0619p14-2).

W

hat does it take to practice law successfully?

That list of abilities would be as diverse as the spectrum of lawyers out in practice today. Many of us would wish for a photographic memory combined with an intellect that allows that large amount of data to be assimilated and processed.

That is exactly what Haley Moss, a lawyer in Florida, does. Joseph Zumpano, the co-founder of the law firm Zumpano Patricios, that employs Haley Moss, said he believes Moss is the first “openly autistic” lawyer to be admitted to the Florida Bar. Moss gives his business an edge in complex areas of law, Zumpano says, because of her “extraordinary” capacity for analysis and information processing (bit.ly/bt0619p14-3).

Of course, not every person with autism possesses a photographic memory or has a capacity for deep analysis. People with autism have a range of abilities and challenges.

Employers such as SAP, JPMorgan 14

BARTALK / JUNE 2019

Chase, EY, Microsoft and others recognize this diversity and are part of the Autism at Work program, which seeks to benefit from this range of abilities by employing more than 160 colleagues in 13 countries (bit.ly/bt0619p14-1).

There are more attorneys with autism than people realize, according to Shain Neumeier, an autistic lawyer from Massachusetts as reported in the ABA Journal (bit.ly/ bt0619p14-5).

The ABA Journal continues: “I think people are becoming more willing to be out of the closet because some of the stigma

The goal would be for all individuals to be recognized for their strengths and abilities... not just for how they are challenged. is gone. It’s not just a bunch of people who are sitting in corners banging their heads; we are fully functioning,” says Michael Gilberg, a special education and disability rights attorney in New York, who was diagnosed with Asperger’s syndrome when he was 18. He graduated from Elisabeth Haub School of Law at Pace University in 2007

and is admitted to practice in New York and Connecticut.

“I want to see us being meaningfully included and have opportunities that are aligned with our skills,” Haley Moss stated, “as well as what we’re capable of.”

The goal would be for all individuals to be recognized for their strengths and abilities that they bring to a workplace, not just for how they are challenged. According to StatsCan, 22% of Canadians have at least one disability, which represents 6.2 million people (2017) (bit.ly/ bt0619p14-4).

Employers, particularly law firms, have a deep role to play by advocating for the rights of those with differing abilities and challenges. They can also be leaders in recognizing and employing individuals with amazing attributes and strengths to help them build meaningful careers.

The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia (presently on leave).

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com GO ONLINE FOR MORE INFORMATION

dave’s techtips Benefits of Hiring People with Disabilities uuu THE JOURNAL OF VOCATIONAL REHABILITATION (bit.ly/bt0619p15-1)

In 2005, the Journal of Vocational Rehabilitation reported on a study that found that 92% of consumers felt more favourable toward those employers that hire individuals with disabilities. Furthermore, the study showed that people also had strong positive beliefs about the value and benefits of hiring people with disabilities, with 87% specifically agreeing that they would prefer to give their business to companies that hire individuals with disabilities.

uuu ATWORK (bit.ly/bt0619p15-2)

AtWork outlines further benefits of hiring people with disabilities.

These include: Improved productivity: Effective job matching fits the employee’s abilities to the employers’ needs. The right person in the right job makes everyone more productive.

Higher

retention: People with disabilities have some of the highest rates of retention of any employee group.

Low investment, high return: There is no additional cost to you, other than the employee’s wages.

Win-win situation for all: Hiring people with disabilities benefits the workers, the community and your company.

promote full citizenship and personal capacity for persons with disabilities through the facilitation of increased labour market participation and outcomes. Through such workforce participation, CASE also promotes social inclusion for Canadians with disabilities.

Joining CASE signifies your organization’s role in being part of the national voice for employment inclusion.

CASE lists a number of supportive organizations that can assist in the role of employment inclusion in BC: Family Works BC (bit.ly/bt0619p15-3) AspectBC

(bit.ly/bt0619p15-4) Community

What resources are out there to assist you in employing people with disabilities?

uuu CASE (bit.ly/bt0619p15-9)

The Canadian Association for Supported Employment (“CASE”), established in 1999, was initially an informal network of service providers and stakeholders committed to the full participation of persons with disabilities in the Canadian labour force. CASE is a national association of communitybased service providers and stakeholders working toward the Employment Inclusion of people with disabilities.

This association strives to

Living BC

(bit.ly/bt0619p15-5) The

Provincial Networking Group Inc. (bit.ly/bt0619p15-6)

Work

BC

(bit.ly/bt0619p15-7) Inclusion

BC

(bit.ly/bt0619p15-8)

There are real and tangible benefits to hiring those people with differing abilities and challenges. As lawyers we are justly concerned with rights and freedoms; I trust we are equally concerned with opportunities being equally available to all.

© 2019 David J. Bilinsky

JUNE 2019 / BARTALK

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feature

DEAN A. CRAWFORD, QC

When Employees Leave for a Competitor From the immediate aftermath to trial

T

he departure of employees to a competitor can raise legal and strategic issues requiring immediate attention by both the former employer and the employees. The employees’ actions, both before and after the move, may give rise to allegations of breach of fiduciary duty, the duties of fidelity or confidence, breach of restrictive covenants, or failure to provide reasonable notice of resignation.

Moving swiftly and with a clear appreciation of the law governing employee competition issues is critical for the employer. For employees, proper counsel early on can be decisive in avoiding significant liability and legal costs.

IMMEDIATE STEPS ONCE THE EMPLOYEES LEAVE

If the former employer suspects that its confidential documents, such as client databases, may have been taken by the employees, it should immediately secure the former employees’ electronic footprint by way of preserving all emails and electronic devices used by the employees that remain in its possession.

A review of employment agreements for any restrictive covenants should be undertaken right away, including an assessment as to enforceability. If the new employer is known, a letter making it aware, for example, that the individuals are subject to a non-solicitation clause may provide a measure of protection. The new 16

BARTALK / JUNE 2019

employer may not have been advised of the clause by the employees and may be concerned to avoid a claim for inducing breach of contract.

CONSIDER THE WISDOM (OR FOLLY) OF AN INJUNCTION APPLICATION

An initial decision needs to be made very quickly as to whether to seek interlocutory injunctive relief against the departed employees. Here, there will be a critical distinction between injunctions which seek to restrain competitive activity as opposed to those which seek the immediate return of confidential information.

Moving swiftly and with a clear appreciation of the law governing employee competition issues is critical for the employer.

In applying the test for an interlocutory injunction to restrain competitive activity, the courts have imposed a more stringent requirement of a “strong prima facie” case, as opposed to the lesser standard of a “serious issue to be tried,” given that an injunction may have a devastating impact on an individual’s ability to earn a livelihood.

Counsel should therefore consider carefully whether obtaining an

injunction to restrain competition is realistic, given the significant time and cost entailed in bringing on such an application.

By contrast, the lesser “serious issue to be tried” standard will apply to injunctions seeking the return of confidential information. Where the possession and use of such confidential information by the departed employees is particularly sensitive, an immediate application for an injunction may be warranted.

From the perspective of the defendant’s former employees, it will usually be prudent to immediately collect and return any confidential information in order to ward off an injunction application or to satisfy the court that relief is not necessary.

CLAIMS FOR MONETARY RELIEF

While the outrage of the aggrieved former employer may lead it to seek substantial damages or, alternatively, a disgorgement of the defendants’ profits, counsel is wise to caution the client of the dynamic it will face at trial. The courts are mindful that, in the absence of an enforceable non-compete agreement, employees are entitled to compete with their former employer. Further, their ability to attract former clientele may be attributable more to their skill, experience and reputation than to any breach of duty or contract that may be established at trial. In the end, while an employer may establish unlawful activity by the departed employees, the remedy awarded may be outstripped by the cost incurred to pursue the action to judgment.

Dean A. Crawford, QC is a partner at Pulver Crawford Munroe LLP. He writes regularly on employee competition issues at competingemployee.com.

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JUNE 2019 / BARTALK

17

feature

ANITA K. ATWAL

Denial of Disability Benefits Does Not Mean an Employee is Fit to Return to Work

A

n employee’s medical leave triggers a new set of obligations for both the employer and the employee.

In cases where the employee is approved for disability benefits by a disability insurer, the landscape is easier to navigate. However, in cases where the insurer has denied disability benefits, employers must be careful not to confuse the insurer’s denial of benefits with an employee’s fitness to return to work.

Treating an employee’s failure to return to work after a denial of disability benefits as unauthorized absenteeism exposes the employer to a significant claim for damages, especially when the employee is still within the appeal period for benefits.

In Bailey v. Service Corporation International (Canada) ULC, 2018 BCSC 235, the employee was denied disability benefits and was in the process of appeal. The employer alleged cause on the basis that the employee abandoned his employment. The employer failed to ask the employee for a medical certificate regarding clearing his return to work. The court held that the employer had no cause for dismissal and awarded the employee $25,000 in aggravated damages and $110,000 in punitive damages.

Similarly, in Zorn-Smith v. Bank of Montreal, [2003] OTC 1060, the employee advised her employer that 18

BARTALK / JUNE 2019

she could not return to work for medical reasons after her claim for disability benefits was denied. The employer took the position that the employee had either resigned her position or, it had cause to terminate her employment for abandonment.

The court held the employee was wrongfully dismissed and awarded 16 months’ pay in lieu of notice. The court also held that advising the employee while she was on medical leave that her employment would be terminated unless she returned to work against her doctor’s advice was bad faith conduct on the part of the employer.

Important lessons emerge for both employers and employees about their respective obligations when an employee is denied disability benefits but the employee is not well enough to return to work.

LESSONS FOR EMPLOYERS If disability benefits are denied, ask for a medical certificate from the employee’s doctor with respect to the employee’s ability to perform their job duties and whether any accommodation is required to facilitate the employee’s return to work.

Do not treat the employee’s failure to appeal the denial of disability benefits as an indication that the

employee is well enough to return to work.

Requiring an employee to attend work when the medical information does not clearly support a return to work may breach the employer’s obligations under the Human Rights Code.

If the medical information does not support a leave from work, provide the employee with a clear warning about the consequences of not returning to work. The employee will have an opportunity to respond with medical information that may not be known to the employer and it gives the employer an opportunity to consider new information before making a termination decision that can have a devastating impact on a sick employee.

LESSONS FOR EMPLOYEES Employees must communicate with their employers about their fitness to return to work.

Employees should not confuse communications with the disability insurer or disability management company as communications with their employer.

It is in the employee’s best interest to provide the employer with timely information from their doctor regarding the restrictions and limitations that prevent a return to work.

Anita K. Atwal is a lawyer practising at HHBG Lawyers – Surrey. She represents employees in employment and human rights matters. linkedin.com/in/anitaatwal-38175b16

WESTERN CANADA GENERAL COUNSEL AWARDS November 4, 2019 in Vancouver wcgca.ca

Honouring In-House Counsel by bringing together senior members of the private bar and the In-House Counsel community in Western Canada

NOMINATIONS OPEN JULY 1 Western Canada General Counsel of the Year

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JUNE 2019 / BARTALK

19

news&events LAW WEEK 2019 RECAP

Dial-A-Lawyer Day Stats

CBA NATIONAL MAGAZINE

Recommendations to Improve Indigenous Child Welfare Bill Bill C-92, which was introduced in the House of Commons in February, is meant to help meet the Government of Canada’s commitment to righting past wrongs when it comes to the treatment of Indigenous children.

The CBA’s Aboriginal, Child and Youth and Family sections call An Act Respecting First Nations, Inuit and Métis Children, Youth and Families a step in the right direction – but nonetheless a step with shortcomings and ambiguities that risk undermining its good intentions.

Bill C-92 arises from a number of factors – the Canadian Human Rights Tribunal’s (“CHRT”) finding in 2016 of severe inequities caused by underfunding of the federal government’s on-reserve child and family services program, and the four non-compliance orders that followed the CHRT finding; the Truth and Reconciliation Commission, whose first five Calls to Action deal with the “woeful state of child and family services for Indigenous children and families;” and a 2017 statement from the Minister of Indigenous Services, which called the state of child and family services for this group a “humanitarian crisis.”

Harms to Indigenous communities over the past century or more “have been recognized by government authorities, (but) there has been slow progress on improvements intended to protect First Nations, Inuit and Métis children,” the Sections say in their submission (bit.ly/bt0619p20-2).

Read the full article

20

BARTALK / JUNE 2019

bit.ly/bt0619p20-3

As part of Law Week 2019, Dial-ALawyer Day (“DALD”) operators answered 263 calls, and of those, 18 lawyers picked up 185 calls to answer your legal questions.

SYSTEM STATS

Total Incoming Calls Total Directed Calls

2019 263 185

Areas of law Family

37

Wills, Estates & Trust

59

Immigration

7

Tort & MVA

14

Employment

20

Business

7

Real Estate

12

Collection

2

Taxation

7

Condo/Strata

2

Criminal

How the callers heard about DALD

8

Media

52

Paper

37

Word of mouth

25

Websites

15

LRS/CBABC

20

Facebook/Twitter

3

SUCCESS

3

Stats are based on CASH+ reports and operators’ notes.

2019

WRAP-UP

Here’s a snapshot of some of the activities that took place during Law Week 2019 in BC:

FREE PUBLIC EDUCATION CLASSES

420 people attended

Coordinated by:

17 classes in 9 cities across BC

DIAL-A-LAWYER DAY 2019

18 volunteer lawyers answered

185 calls covering 11areas of law in 4 hours

The Barry Sullivan Law Cup Congratulations to Ananya Aravindan (centre), Port Moody Secondary School, who took first place. And to runner-ups: Jeanna Pillainayagam of Little Flower Academy (left), and Mallory Moxham (right) of West Point Grey Academy.

Meet the Chiefs Dozens of students from various post-secondary schools had the unique opportunity speak directly with the Chief Justices from the Supreme Court, the Court of Appeal and the Provincial Court

REGIONAL EVENTS TOOK PLACE IN: NANAIMO | KAMLOOPS | VICTORIA | TERRACE | PENTICTON | NELSON THANK YOU TO OUR SPONSORS

BarTalk_LawWeek_Post_2019.indd 1

5/13/2019 4:17:07 PM

JUNE 2019 / BARTALK

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news&events BC WLF NEWS

Pregnancy at Trial: BC’s Outdated Gowning Policy Systemic barriers to women’s advancement typically involve issues such as a lack of women in partnership positions, or unequal compensation for work. However, strict gowning directives also indicate the lack of consideration for women in the legal profession.

British Columbia remains one of the only provinces in which there has been no courtauthorized exemption to gowning requirements for those who are pregnant, or those with disabilities.

Modified gowning policies are necessary to uphold the dignity of pregnant barristers, as court gowning items are costly and custom-made from fabrics that

NEWS

CLEBC Update EMPLOYMENT AND LABOUR LAW RESOURCES Employment law issues arise often in your clients’ workplace and even in your own. Employment Standards in British Columbia – Annotated Legislation and Commentary offers you succinct commentary and case annotations to accompany the full text of the Employment Standards Act and Employment Standards

22

BARTALK / JUNE 2019

do not stretch to accommodate pregnancy. Further, judges and court staff take a strict view of required court attire, reacting negatively to unauthorized variation of the gowning requirements.

In other provinces, including Ontario, Manitoba, and Nova Scotia, courts have published practice directives that allow lawyers to depart from traditional business and gowning attire by reason of maternity or disability.

These modifications include either dispensing with a waistcoat and tabs, or varying attire to the extent counsel deems necessary as long as it is in keeping with the spirit of decorum.

Regulation. This resource brings the ever-expanding body of employment standards tribunal and court decisions under control.

Annually updated, seasoned practitioners judiciously select and summarize only the most significant new decisions for your review.

With this resource, you will be able to: easily find the general principles and leading cases relating to any particular section of the Act

The CBA has published a resolution, “Accommodating Maternity in Court Gowning Directives,” urging Canadian courts to adopt practice directives that permit counsel to depart from strict gowning requirements as necessary.

This would provide a dignified and respectful way for counsel to inform the court that their attire has been modified according to the practice directives or rules.

The legal profession has a duty to create policies and protocols that respect all members as professionals. This includes recognizing pregnancy as a common and normal experience for many members. The WLF has taken up this charge, and will be advocating for updated gowning policy directives from all BC courts in the coming months.

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BC LEGISLATIVE UPDATE

ACTS IN FORCE Current from to February 27, 2019 to April 23, 2019 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org.

ENERGY, MINES AND

PETROLEUM RESOURCES STATUTES AMENDMENT ACT, 2018, S.B.C. 2018, C. 15 (BILL 15) Sections 5, 7, 8 and 24 are in force March 29, 2019 and sections 2, 12, 19, 21 and 23 are in force April 1, 2019

FORESTS, LANDS AND

NATURAL RESOURCE

BRANCH & BAR

Calendar JUNE

6 PD Seminar: A Changing Practice – Defining your Own Path to Success in Law — Vancouver 12 An Evening with David Rudolf | Criminal Justice Annual Dinner 2019 — Vancouver 12 CBABC & Department of Justice Canada Conference 2019 — Vancouver 20 ALF 8th Annual Retreat & 12th Annual National Aboriginal Day Auction Reception — Richmond 25 Westminster County Bar Associations Golf Tournament — Surrey

JULY

1 Canada Day

OPERATIONS STATUTES AMENDMENT ACT, 2016, S.B.C. 2016, C. 11 (BILL 12) Sections 43, 47 and 48 and section 49, as it enacts section 108(2)(r.1) of the Wildlife Act are in force April 15, 2019

INFORMATION MANAGEMENT

(DOCUMENTING GOVERNMENT DECISIONS) AMENDMENT ACT, 2017, S.B.C. 2017, C. 7 (BILL 6) Act is in force March 31, 2019

LOCAL GOVERNMENT

STATUTES (HOUSING NEEDS REPORTS) AMENDMENT ACT, 2018, S.B.C. 2018, C. 20 (BILL 18) Sections 1 to 4 and 13 are in force April 16, 2019. Sections 5, 8 and 12 are in force April 16, 2019

MISCELLANEOUS STATUTES

AMENDMENT ACT (NO. 3), 2018, S.B.C. 2018, C. 36 (BILL 36) Section 7 is in force May 15, 2019

CBA NATIONAL MAGAZINE

The Ban Against Oil Tankers: Pleasing No One Depending on how you view it, Bill C-48, which proposes to ban oil tankers from transporting crude oil along most of Canada’s West Coast, either legislates a long-existing voluntary practice, thereby safeguarding coastal resources for generations to come, or threatens the very foundation of our confederation.

In substance, Bill C-48 places a moratorium on crude oil tanker traffic along the Northern British Columbia Coast.

Part of Transport Canada’s Oceans Protections Plan, the bill largely consists of delineating the geographical scope of the prohibition, and instituting administration and enforcement mechanisms. The federal government has promoted the legislation as an effort to protect shorelines and coastal waters from the risk of potential pollution.

Read the full article

bit.ly/bt0619p23-1

JUNE 2019 / BARTALK

23

news&events CBA NATIONAL MAGAZINE

Climate Emergencies and the Rule of Law “We are in the midst of a climate emergency which poses a threat to our health, our planet and our children and grandchildren’s future,” London Mayor Sadiq Khan told the Guardian upon declaring a climate emergency in the United Kingdom’s capital city. In Canada, hundreds of cities across six provinces have followed suit, including Vancouver and Halifax. They have authorized a range of measures, from expedited funding for local adaptation needs, such as building or improving sea walls, to fast-tracking municipal measures to achieve carbon neutrality.

Given the urgent need for climate action, these municipal emergency declarations contain welcome commitments. But they also underscore another challenge that we face: What role must law play in a state of perpetual climate emergency?

For decades, environmentalists have urged governments to grasp the climate change threat. They have pleaded for urgent state action as they would in a time of war or under the menace of terrorist threats.

The recent proliferation of climate emergency declarations suggests that some leaders are beginning to see it this way. Recent record-breaking floods, wildfires, storms and fatal heat waves across Canada foreshadow the catastrophic impacts of planetary warming of more than 1.5-degrees predicted by the Intergovernmental Panel on Climate Change.

Read the full article

TIPS FROM

bit.ly/bt0619p24-1

FRONTIERS OF EMPLOYMENT LAW

What a difference a year can make. The norms of yesterday, those in major treatises on labour relations, employment law or workers compensation law – classified from KN190 to KN198 in CLBC’s collection – are constantly being upended especially as they relate to cannabis or social media use. It is naïve to expect publishers can keep up, even if treatises were updated annually. That said, the 2018 edition of Social Media and Privacy Law for Employers: Hiring, Firing and Managing Reputation, covers questions that would boggle most employment lawyers half a generation ago. If you cannot find a print resource, some online resources have popped up to offer coverage where change happens swiftly. One fascinating site is thecannabischannel.ca. It’s entirely possible (depending on your workplace), that this site would have been blacklisted within your networked environment. It is, however, an official Thomson Reuters website that publishes cannabis-related HR and workplace safety updates from the legal lens.

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BARTALK / JUNE 2019

grantsapproved LAW LAWFOUNDATION FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

At the March 9, 2019 Board of Governors’ meeting the following grants were approved.

$95,000 Sources Community Resources Society Legal Information and Advocacy Program

$5,805,000 was approved for the following 30 continuing programs:

$95,000 Sources Community Resources Society Poverty Law Advocacy Program

$960,000 Community Legal Assistance Society Major Programs $470,000 West Coast Environmental Law Association Access to Justice Programs $450,000 Access Pro Bono Society of BC Major Programs $400,000 BC Law Institute Program Grant $385,000 Justice Education Society of BC Major Programs $380,000 West Coast LEAF Association Litigation and Law Reform $370,000 People’s Law School Society Major Programs $280,000 Tenant Resource and Advisory Centre Society Tenant Legal Advocacy Program $190,000 BC Public Interest Advocacy Centre Regulatory Justice Program $150,000 Migrant Workers Centre BC Society Migrant Workers Centre Legal Advocacy Program $105,000 Community Connections Society of Southeast BC East Kootenay Poverty Law Advocacy Program $100,000 PovNet Society PovNet Program $95,000 Atira Women’s Resource Society Legal Advocacy Program for Women $95,000 Battered Women’s Support Services BWSS Legal Services and Advocacy Program $95,000 Dze L K’ant Friendship Centre Society Legal Advocacy Program $95,000 Maple Ridge/Pitt Meadows Community Services Poverty Law Advocacy Program $95,000 North Shore Community Resources Society North Shore Legal Advocacy Program $95,000 Quesnel Tillicum Society Poverty Law Advocacy Program $95,000 Quesnel Tillicum Society Family Law Advocacy Program $95,000 Seniors First BC Society Legal Advocacy Program $95,000 SHARE Family and Community Services SHARE Legal Advocacy Program – Poverty Law

$95,000 Terrace and District Community Services Society Poverty Law Advocate Program $95,000 Wachiay Friendship Centre Society Wachiay Advocacy Outreach Program $95,000 Watari Research Association System Negotiator Program $80,000 Upper Skeena Counselling & Legal Assistance Society Advocacy Program $70,000 Mediate BC Society Public Education Program $60,000 Community Legal Assistance Society David Mossop, QC, Public Interest Articling Fellowship $25,000 University of Saskatchewan The Wiyasiwewin Mikiwahp Native Law Centre Funding totalling $2,684,718 for miscellaneous grants: $790,000 Legal Services Society LSS Family Law Incubator Project $600,000 BC Courthouse Library Society LawMatters Enhancement Program $375,000 People’s Law School Society Dial-A-Law: Enhancing A2J Through Innovative IT Applications $350,000 Justice Education Society of BC Curricular resources for Grades K-12 $230,500 One Time Start Up Costs for new poverty and family law advocacy programs $189,218 Access Pro Bono Society of BC Class Actions Proceeds (A2J) $100,000 Parent Support Services of BC Kinship Care Research Project $30,000 Metis Nation BC Justice Consultation Project $20,000 Seniors First BC Society Travelling Wills, Navigator Network Feasibility Study Funds totalling $4,968,000 for on-track programs: $890,000 Society for Children and Youth of BC Child and Youth Legal Centre $390,000 MPA Society MPA Court Services Program – Surrey & Port Coquitlam

$285,000 Community Connections Society of Southeast BC East Kootenay Family Law Advocacy Program $285,000 Elizabeth Fry Society of Greater Vancouver Poverty Law Advocacy Program $285,000 Kettle Friendship Society Mental Health Legal Advocacy Program $285,000 Kitimat Community Development Centre Poverty Law Advocacy Program $285,000 Penticton and Area Access Society Family Legal Advocacy Program $285,000 Port Alberni Friendship Center Family Law Advocacy Program $285,000 Sea to Sky Community Services Poverty Law Advocacy Program $238,000 Opportunities Career Services Society Family Law Advocacy Program $220,000 Seniors First BC Society Elder Law Clinic $190,000 Environmental Law Centre Society, University of Victoria Environmental Law Centre Clinic Program $190,000 Pivot Legal Society Homelessness and Police Accountability Programs $150,000 Fort Nelson Aboriginal Friendship Society Poverty Law Advocacy Program $150,000 People’s Law School Society Dial-A-Law Phase Two: Transformation and Service Delivery $100,000 University of Victoria Access to Justice Centre for Excellence $100,000 West Coast Prison Justice Society Human rights, Charter and health care initiative $95,000 Access Pro Bono Society of BC APB Lawyer Referral Service (1st year transition) $95,000 Immigrant Services Society of BC ISSofBC Legal Advocacy Program $95,000 Okanagan Advocacy and Resource Society Legal Advocacy for the North Okanagan $40,000 Kinbrace Community Society Accessing Refugee Protection $30,000 University of British Columbia LSLAP For-Credit Program Funds totalling $60,000 from the strategic initiatives fund: Seniors First BC Society Seniors First BC Nighat Afsar’s Articles

JUNE 2019 / BARTALK

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feature LISA PICOTTE-LI

An Employee and a Machine at a Workplace Considerations for the future of employment and labour law

D

igital technology, data, and machine learning have already changed the world. Whereas employers previously employed people in positions with regular hours, pensions, benefits, and specialized skills, more people are performing work with greater flexibility, without paid sick time or insurance, and with less predictability. Intelligent algorithms can perform work, constantly and consistently, with greater efficiency and control.

But the rise of machines is not the end of employees. It requires the ideal employee to have adaptable skills. The demand for workers is becoming less about the ability to perform repetitive tasks or applying specialized knowledge. It requires workers to navigate the complexities of supporting or being supported by machines, managing interactions with cyber physical systems, and critically examining the network of information and structures that impact decisions.

How will employment and labour law keep up? What will your advice be if, for example, an employee enables a predictive algorithm to learn from discriminatory data and the employer relies on the algorithm for hiring? Does it matter if neither the employee nor the employer is aware of the bias in the algorithm? What if 26

BARTALK / JUNE 2019

one is aware, but not the other, and how much – or little – does impact and intentionality matter in a relationship that has been changed by machine learning?

To get ahead and leverage the changes in the practice of employment and labour law, consider three areas that will have increasing importance: 1. Learning the law, then expanding it.

Familiar concepts like working time, constructive dismissal, and training will look different as technology fundamentally changes the workplace and management of human capital. How can legal protections be interwoven into the development of workplace changes rather than be imposed as outdated requirements?

For example, traditional union memberships will change but new member groups will emerge. How can established rules be applied to unfamiliar situations, in a way that is effective and relevant?

2. Learning the changes, then preparing for innovation. As trial lawyers know, you do not need to be an expert to cross-examine an expert. Similarly, you do not need to be a data scientist to know that

the links between probabilities will result in business changes.

Basic knowledge of data analytics, business intelligence, economics, marketing, and programming languages will amplify your advice. Understanding technological nuances means you will be more effective at delivering services tailored to your client’s needs.

3. Learning the business, then the challenges, risk profile, and strategic goals. When your client asks a question, your first question should be, “Why do you ask? What is your goal?” You can potentially find a more compliant, better aligned solution for their needs.

How you deliver guidance can be just as important as providing the correct legal answer. It will become increasingly important to know when to provide the perfect-top-shelf-lawfirm advice and when to triage. Your primary value might not be resolving the thorny issue, but distilling the learnings to further a strategy.

Fostering confidence in how the law will be applied is integral to gaining trust. Even where the law is clear, it will likely be considered differently as the landscape of work continues to shift. The best lawyers proactively offer options, flexibility, and added value in the delivery of legal services.

It is a small leap for lawyers, as experts in managing issues, risk, and policies, to become partners in the leadership of people and technology.

Lisa Picotte-Li is Legal Counsel at Technical Safety BC, a provincial regulator.

The views are those of the author.

B R I T ISH

COLU M B I A

career opportunities In-House Litigation Counsel | 3-7 years | Vancouver

Our client, a leading financial services provider, is adding a new Legal Counsel to their Litigation/Disputes team. The incoming lawyer will provide legal advice, guidance, and support to a unit responsible for a very broad range of work including disputes, Human Rights complaints, and financial crimes and regulatory advice. The ideal candidate will have 3-7 years of solid litigation experience gained in a leading law firm or in-house environment, with experience in a regulated environment a plus (as is previous experience with banking and IT matters). You will have strong people skills, and a proactive and practical disposition. For more information or to apply, please contact Mike Race at mrace@zsa.ca referencing #BT29009.

In-House Corporate Counsel – M&A and Securities | 2-6 years | Vancouver

We are working with a major TSX-listed Canadian company (with some US presence), currently seeking Corporate Counsel to join their team, reporting directly to the GC. It’s a mature company, a senior well established business, with a great deal of transaction flow – often with a high-value, cross-border aspect to them. The key background needed for this role is Corporate M&A and Securities.

However, the beauty of this position is the true variety of legal areas you will be exposed to, whether it’s real estate, employment, environmental matters, corporate governance, etc. They are ideally looking for a lawyer with 2-6 years of call, with securities / public company experience as well as corporate commercial experience. A US bar call may be useful, but is not required. You’ll enjoy a dynamic environment, with true work/life balance, along with a broad range of high-level and interesting transactional and advisory work. For more information on this great opportunity or to apply in confidence, please contact Mike Race at mrace@zsa.ca referencing #BT29014.

In-House Legal Counsel – Commercial & Employment | 2-5 years | Vancouver

Our client is a highly regard technology company with global reach, and a significant legal team in Vancouver. They are currently looking for a lawyer with a mix of general corporate commercial experience and some exposure to employment law. It’s a fairly broad in-house position covering a range of legal areas, but general commercial / contracts experience is the most important piece. In this role, you will be reviewing and drafting a variety of commercial contracts, marketing materials, NDAs, recruitment agreements, partner contracts, etc. Some employment law experience would be highly regarded. To discuss this position further, please contact Mike Race at mrace@zsa.ca referencing #BT27612.

Commercial Lawyer | 5+ years | Vancouver

Our client, a growing, entrepreneurial firm situated in Vancouver, is seeking an intermediate-senior level business/real estate associate to join their small team and highly collegiate culture. The ideal candidate will have between 5-12 years of experience in corporate commercial and real estate law (with an emphasis on real estate development and commercial real estate), and an appetite to mentor junior staff. This firm offers flexible work arrangements, high-calibre work, and excellent benefits. For more information or to apply for this position, please contact Amrit Rai at 604-681-0706 or arai@zsa.ca quoting reference #BT28131.

Commercial Litigation Lawyer | 5+ years | Fraser Valley

Tired of the burgeoning house prices in Vancouver? Our client is a busy full service law firm with a team of 20 lawyers and a highly specialized legal support staff located in the Fraser Valley. They are looking for a Litigation Lawyer to join their team and take part in a succession plan for a lawyer due to retire in a few years. The incumbent will be stepping into a busy practice which they can take over in due time. As the ideal candidate, you will have 5+ years of related litigation experience, be self-motivated, and have a sense of humour!

To learn more about this opportunity, please contact your Amrit Rai at arai@zsa.ca or 604-681-0706, quoting Ref. #BT28931.

Civil Litigation Associate | 1-3 years | Okanagan

Housing market in Vancouver getting you down? Why not consider an opportunity with our client, a leading law firm located in the beautiful Okanagan! Our client is seeking a junior Civil Litigation Associate to join their growing team. This individual will have access to great mentors and terrific work. The ideal candidate will have between 1-3 years’ experience working in civil litigation, and will be ready to take on a variety of work. For more information about this exciting new opportunity, please contact Amrit Rai for a confidential discussion at 604-681-0706 or arai@zsa.ca, quoting reference #BT26786.

Junior Solicitor | 1-3 years | Okanagan

Are you an ambitious junior solicitor with varied experience who wants to establish their practice in the Okanagan, where you have vineyards at your doorstep and access to an array of outdoor activities? If so, we have just the opportunity for you. Our client is looking to hire a lawyer with 1-3 years’ experience doing general solicitor work – real estate, wills, and commercial transactions including commercial leasing. The full gamut at a junior level. You don’t need to be experienced in everything but some general experience would be an asset over highly specialized experience. Excellent mentorship and guidance will be provided, with the opportunity to narrow your practice in time. For a confidential discussion, please contact Amrit Rai at 604-681-0706 or arai@zsa.ca, quoting reference #BT28375.

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© 2007-2019 ZSA Legal Recruitment Limited. ZSA, the ZSA logo, and CANADA’S LEGAL RECRUITMENT FIRM are trade-marks of ZSA Legal Recruitment Limited.

JUNE 2019 / BARTALK

27

nothingofficial TONY WILSON, QC

Valar Morghulis

Shine on you crazy diamond

I

saw a newsworthy article recently about a new Washington State law permitting the composting of human remains as an alternative to traditional burial and cremation. The process, says Recompose, the company that is promoting the service, “gently converts human remains into soil,” although from a Game of Thrones perspective, it won’t prevent the dead from coming back to life. But I digress.

According to Recompose, human composting happens within futuristic, reusable, hexagonal “recomposition” vessels, (which, face it, are really “decomposition vessels” with better branding). An un-embalmed person who is presumably dead, is wrapped in a shroud, (natural fibres only – no gortex or polyester) and placed in one of these star-trekkie hexagonal boxes along with wood chips, alfalfa and hay, (and in my case, a month’s supply of Claratin).

The temperature rises to 150°F to speed up the microbial process, and as the body decomposes (recomposes?), it is composted. Voila! After 30 days, the former dead person with a name and a Facebook page is turned into a cubic yard of soil, which will fill two large wheelbarrows from Home Depot. The composted remains can be used to fertilize trees, forests, shrubberies and presumably the backyard tomatoes and other garden vegetables the dearly departed has left behind. Frankly, I’d give my right arm to see the look on people’s faces when they’ve enjoyed a tomato salad that was fertilized with… my right arm, but the process might be a bit too “soylent-greeny” 28

BARTALK / JUNE 2019

for some people’s (ahem), “taste”.

However, full marks to Recompose for thinking outside the casket.

There are other novel alternatives to casket burials, cremation, and becoming fertilizer for next year’s tomato crop. Although I’m in no rush, I could become a diamond! Yes indeed, LifeGem, Cremation Solutions and Algordanza will compress and super-heat my cremated ashes and turn them into a man-made diamond. They extract the carbon, convert it to graphite then heat it to almost 2,900°F, then, they compress the graphite with 725,000 pounds per square inch of pressure – the weight of the world on what’s left of my shoulders, so to speak – to turn me into a synthesized diamond for oneof-a-kind jewelry. Maybe my wife will have some fun with her new jewellery at parties! “That’s such a beautiful blue ring I see you’re wearing. Is it a sapphire?” “Oh no, that’s my late husband Tony. He had such beautiful blue eyes… see... right here.”

I discovered yet another alternative for this ( ahem) “undertaking”. For as low as $5,000 USD, Celestis will send a small “symbolic portion” of my cremated remains (and some DNA, like an eyelash), into space in a special capsule, just like they did for Gene Roddenberry and James Doohan. After a few thousand orbits, the warp drive will fail and I’ll

re-enter the atmosphere in a magnificent blaze of pop-culture metaphors.

But for $12,500, that same “symbolic portion” of me can be sent by Celestis… to the moon! “We buried most of dad on the moon” will be a showstopper in any conversation my adult kids will have about their late father, and far more interesting than “Dad fertilized these tomatoes… did you like them?” Compost is temporary. Diamonds are forever.

So that’s my plan. Send me to the moon, preferably as a diamond! My family won’t have to feel guilty for never visiting the cemetery.

They can just look up at the moon, and roll their eyes knowing that I got the last cosmic laugh. My memorial service will be a launch party celebrating my… launch. Friends will do their worst William Shatner and Patrick Stewart impressions while The Blue Danube, Also sprach Zarathustra and Dark Side of the Moon play in the background.

Call it the ultimate trip, the final frontier or Monoliths-R-Us™, but when the God of Death comes for me – which I hope will be later rather than sooner – I choose to go to the moon. Boldly.

But not today.

Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and a Bencher of the Law Society.

The views expressed herein are strictly those of Tony and do not reflect the opinions of the Law Society, CBABC, or their respective members.

ACCESS | SEARCH | DISCOVER Update your basic profile or enhance your profile with additional features: FREE for CBABC members ($175 value)

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JUNE 2019 / BARTALK

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feature SARA FORTE AND PAMELA COSTANZO

Best Practices in Harassment Training for 2019 A call to arms

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t is time to declare war on workplace sexual harassment, in the legal industry and every organization. After two years of a relentless stream of personal stories and appalling statistics, #metoo has demonstrated that workplace sexual harassment is pervasive. Harassment training has been used for many years by well-intentioned organizations and law firms. Unfortunately, the 2016 report (bit.ly/bt0619p30-1) on a study by the US Equal Employment Opportunity Commission found no evidence that traditional harassment training is effective in preventing harassment. Should we wave the white flag on harassment training?

BYSTANDER TRAINING

There is a new weapon in the battle on workplace sexual harassment: bystander training. Traditional harassment training places sole responsibility for prevention squarely on the victim and the harasser. This alienates the vast majority of the workforce, who are mandated to attend training that is irrelevant to them.

Bystander training is relevant to everyone in the work community.

The focus is on developing a mutual understanding about what bullying and harassment looks like in the organization’s unique context, and empowering everyone to “see something, say something.” It is not about handing out whistles and making everyone referees. Instead, it 30

BARTALK / JUNE 2019

is about moving from a culture of silent condonation of harassment to one that tackles problems while they are small, before they grow bigger.

UNITED STATES ARMY EXAMPLE

In this war, one might not have thought the United States Army would be leading in tactics, but it has been reported to have taken a progressive approach (bit.ly/bt0619p30-2).

The US Army’s philosophy is battles can only be won by teams working effectively together. Bullying and harassment is toxic to teams and breaks down trust. They have, accordingly, rebranded their harassment training as leadership development, and placed the focus on effective teamwork through the elimination of harassment.

reaching goals. Bystander training is leadership development because it provides tools to enable teamwork.

TRAINING ALONE IS NOT ENOUGH

Another fair criticism of traditional harassment training is that it is not integrated into day-to-day work. It is a session that you go to, a box is checked, and you go back to your desk. Today’s reboot of harassment training only works if combined with cultural change, which means visible support from the top down.

Also recommended are follow-up team meetings, to reinforce team values and mutual agreement on acceptable behaviours and boundaries.

... battles can only be won by teams working effectively together. Bullying and harassment is toxic to teams and breaks down trust.

Bystander training is a proactive step that organizations can take to combat workplace sexual harassment. The time and expense of training is more than paid for in avoiding the cost of managing or defending a single harassment complaint. We can never surrender and accept that sexual harassment at work is inevitable. There is new ammunition and strategy available, and we can all be a part of change for the better.

This approach has obvious application to organizational strategy.

Every company, and law firm, needs trust and teamwork to succeed in

Sara Forte is the founder of Forte Law (fortelaw.ca), an employment law firm in Surrey. Pamela Costanzo is a labour & employment lawyer with Forte Law.

feature LISA SOUTHERN AND JILLIAN HUMPHREYS

‘Dis’ Respecting the Workplace Investigation Complaints about Investigation Process

I

FRIVOLOUS, VEXATIOUS, MALICIOUS

n the current climate where the culture of work is being scrutinized like never before, workplace investigations are a significant obligation for employers, right alongside the obligation to create a respectful workplace. But does an investigation, with all it entails, respect the requirement for a respectful workplace?

to address the feelings of animosity that can flow from accusations and the investigation.

Today’s focus on workplace investigations arises from the culmination of several factors, including: 1) an increased level of judicial scrutiny about how employers make decisions around employment discipline; 2) a cultural shift in complainants coming forward as a result of movements like #metoo; and 3) amendments to WorkSafeBC legislation in 2015 relating to bullying and harassment that can impact an employee’s health and safety at work.

PRIMA FACIE REVIEW

Of particular importance is the policy rationale behind the WorkSafeBC amendments. The legislation was designed to protect employees from harm, and to require supervisors and employers to meet their obligations to report on and investigate egregious workplace behaviours.

Ironically, the process of investigating, especially if it is not done well, can be contrary to the legislative intent of protecting employees from harm. Investigations can be stressful, disruptive and divisive. The process itself, if not well structured, can create an environment that feels unsafe and distracting. Outcomes may leave complainants and respondents working together without measures

in their policies, while stipulating that parties must consent to an informal mediation process, and also agree that if the mediation is unsuccessful, the investigator can still complete the formal investigation.

A flawed assumption is that all complaints, regardless of their nature, must be investigated. Employers, and their experienced investigators, have a few tools at their disposal that challenge this assumption.

Employers can conduct a prima facie analysis of a complaint against the backdrop of the law regarding what constitutes bullying and harassment. Essentially, the complaint is assessed to determine if there could be a violation of law if all the allegations are true. If that threshold is not met, an investigation may not be necessary and the employer can explore other ways to address issues raised by the complainant.

MEDIATION

Most respectful workplace policies include language around the option of mediation prior to an investigation. However, the opportunity to mediate may not arise until the investigation is underway and there has been sufficient fact finding to assess options that may resolve the conflict.

It is common in labour matters for adjudicators to also act as mediators.

Employers should consider referencing the possibility of mediation throughout the investigation process

The language in most respectful workplace policies contains warnings to prevent the abuse of the complaint process – a variant of a warning to employees that frivolous, vexatious or bad faith complaints can lead to discipline. Investigators need to be confident in finding a complaint is vexatious. Employers should be willing to discipline an employee for submitting a frivolous complaint.

Employees need to understand the significance of the complaint process and possible outcomes. Clear policies that are applied consistently when the process is abused help to ensure an investigation only takes place when required.

Workplace investigations provide an essential tool to ensure employees work in a respectful workplace. Deciding if and when to conduct an investigation, who is going to conduct it and under what policies are only a few of the important decisions to be made when a complaint is received.

Lisa Southern and Jillian Humphreys, Workplace Lawyers and Investigators at Southern & Associates.

JUNE 2019 / BARTALK

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professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while providing the opportunity to network and advance one’s career, practice and business. We pride ourselves in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for your Law Society reporting.

Upcoming Seminars and Dinners A Changing Practice: Defining your own Path to Success in Law Lawyers often approach their careers with the perspective that there is a right and a wrong way for them to be successful in the practice of law, with the “right way” being to move from law school, to associate, to partner, with no diversions from this well-tread path. Contrary to this commonly held belief, the practice of law is becoming an increasingly big tent, where more and more lawyers are charting their careers in unconventional ways, and finding interesting and innovative ways to deliver legal services to clients.

Hosted in partnership with the Vancouver Bar Association, join us as we welcome Tyson Gratton, McMillan LLP, Michelle Jones, Lawson Lundell LLP, and Lynne Charbonneau, Lexterna, who will discuss becoming a partner, starting a practice, working in-house, working remotely or on a modified schedule, and how working in nonpractising roles has contributed to their law practice.

Date: June 6, 2019 Location: KPMG Vancouver, Vancouver BC

An Evening with David Rudolf | Criminal Justice Annual Dinner 2019 From Marie Heinen to Dennis Edney, QC, this Section has brought you a high calibre of speakers year after year.

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BARTALK / JUNE 2019

This year, hear from David Rudolf, an American criminal defence attorney passionate about fighting for the individual against the power of the government. Rudolf came to national prominence for defending Michael Peterson in his initial murder trial, which was chronicled in the 2004 miniseries The Staircase, now on Netflix with new follow-up episodes.

This is not only an opportunity to hear from David Rudolf in-person in Vancouver but is also a collegial event where you can socialize with Crown, defence and judges alike. Past participants say, “it is an annual event well worth attending.”

Date: June 12, 2019 Location: Fairmont Pacific Rim, Vancouver BC

CBABC & Department of Justice Canada Conference 2019 The BC Branch of the Canadian Bar Association and the Department of Justice Canada BC Regional Office are pleased to jointly host this unique public law conference. This full-day event brings together private and government counsel to hear judges, scholars, senior private practitioners, and senior

government counsel share their perspectives on the latest developments in civil litigation.

Participants will leave this course with knowledge of key recent Crown liability, Charter of Rights and Freedoms, public law decisions, and developments in Indigenous civil litigation, from a variety of perspectives.

Date: June 12, 2019 Location: Best Western Chateau Granville Hotel, Vancouver BC

Save-the-Date: CBABC Wills & Trusts Conference 2019 Back by popular demand, the CBABC Wills & Trusts Sections have come together to bring you a 2-day conference in Kelowna dedicated to wills and estate practitioners. Savethe-date to join us to exchange views with fellow practitioners on current practice issues in a relaxed and congenial setting and to make meaningful connections by networking with practitioners from across BC! Date: September 20-22, 2019 Location: Manteo Resort Waterfront Hotel, Kelowna BC

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JUNE 2019 / BARTALK

33

barmoves Who’s Moving Where and When

34

Houtan Mashinchi

Kelly Starrak

joined Fasken as an associate in the corporate commercial group. His practice is focused on commercial transactions.

joined Miller Thomson’s Vancouver office as an associate in the real estate group. Kelly’s practice focuses on planning, development, and Aboriginal law matters.

Mark Gustafson

Braden Lauer

was appointed Principal at JFK Law Corporation. Mark, who joined in 2010, practises Aboriginal and administrative law, Crown consultation, natural resource law, and constitutional litigation.

joined Miller Titerle + Company’s Business Law group. Braden focuses on corporate commercial law, franchising, mergers and acquisitions, not-for-profit, and commercial real estate.

Jeffrey Langlois

Stephen Wintermute

was appointed Principal at JFK Law Corporation. Jeffrey joined in 2013 and practises Aboriginal law and civil litigation, focusing on constitutional litigation, Crown consultation, and environmental law.

joined the Vancouver office of DLA Piper (Canada) LLP as an associate in the Securities & Capital Markets group.

Jennifer Tseng

Kiran Sidhu

joined Fasken as an associate in the Real Estate group. Her practice is focused on commercial real estate, commercial leasing, and secured financing transactions.

joined the Business and Real Estate Law group as an associate in the Vancouver office of Lindsay Kenney LLP. Kiran’s practice will focus on real estate and general corporate/ commercial matters.

Amandeep S. Hayer

Caolan Lemke

joined Sedai Law Office as a junior immigration lawyer.

joined MLT Aikins LLP as an associate lawyer in the firm’s Vancouver office.

Caolan’s experience includes mergers and acquisitions, corporate governance and reorganizations, and asset and share purchase and sale transactions.

BARTALK / JUNE 2019

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1906.

Rose Keith joined Harper Grey LLP as associate counsel in the Workplace Law group. Rose brings a well-rounded perspective to her practice and is also a Roster member of MediateBC.

newmembers March & April 2019 Lawyers

Sunny Chauhan

Ognjen Balaban

Peter Coady

INK LLP Vancouver

Evan Barchuk

SHK Law Corporation Vancouver

Lydia Chu

Peck & Company Vancouver

Casey Dheensaw joined Singleton Urquhart Reynolds Vogel LLP as an associate.

Andrew Duchene Duchene Law Office Vancouver

Harvi Grewal QA Law Vancouver

Jessica Guo

Sangra Moller LLP Vancouver

Daniel Kiselbach joined Miller Thomson’s Vancouver office as a partner practising in the areas of international trade, customs and tax law.

Marichelle DefensorJiloca MEP Business Counsel Vancouver

Allison McMahon

Farris, Vaughan, Wills & Murphy LLP Vancouver

Sukhdeep Ram Surrey

Faraz Ravanbakhsh

Borden Ladner Gervais LLP New Westminster

Carli Ziegler

Brown Henderson Melbye Victoria

Susan Humphrey

Law Students

Victory Square Law Office LLP Vancouver Hunter Litigation Chambers Vancouver BC Public Guardian and Trustee Vancouver

opened her own law practice in North Vancouver and is now doing business as Lead Law. Leni focuses on family law and general litigation.

DLA Piper (Canada) LLP Vancouver

Zosia Hortsing

Dana Kingsbury

Leni Adriano

Abbotsford

Robert Lo

Carolyn Belleau Victoria

Chad Burton Langley

Julie Charest Vancouver

McLarty Wolf Vancouver

Rainjit Gill

Chun Zachary Ng

Armaan Kassam

Zachary Ng, Barrister and Solicitor Vancouver

Melissa Valana Pazder Law Corp Vancouver

Articling Students Natalie Antturi New Westminster

Jessica Bond

Stewart McDannold Stuart Victoria

Surrey

Coquitlam

Chang Liu Beijing

Jennifer Lo Richmond

Liam McGuigan Victoria

Ruhiyeh Naimi Coquitlam

Nima Sahebi North Vancouver

Risha Sidhu Richmond

JUNE 2019 / BARTALK

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RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3

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2019-05-09 8:55 AM