When Workplace Discrimination is Not Illegal: Schrenk v. British Columbia

The British Columbia Human Rights Code mandates the BC Human Rights Tribunal to prevent and provide redress to discrimination in areas such as tenancy, services and employment. In recognition of its important public purpose, this Code has long attracted a large and liberal interpretation of its mandate.

No where is this “large and liberal” interpretation of the law more evident than in the employment context, where an “employer” has been held to include at times supervisors, contractors, unions, trade groups, significant customers or any other organization that occupies a position of power and can dictate conditions of employment. Continue reading “When Workplace Discrimination is Not Illegal: Schrenk v. British Columbia”

Moving On Following Termination: The Duty to Mitigate

Losing a job can be one of the most traumatic events that a person may experience in the course of one’s life, sometimes even being on par with a family breakdown or the loss of a loved one. That’s because we all know that work is more than just a “contract”, and it’s certainly more than a paycheck. Our co-workers are not just colleagues, they are friends, collaborators and mentors.  Many people will spend more time awake at the office than they will with their family. In many ways, work defines who we are, as our Supreme Court once eloquently stated nearly 30 years ago:

Work is now considered one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

Continue reading “Moving On Following Termination: The Duty to Mitigate”

Using Summary Trials in a Wrongful Dismissal Action

The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada. This challenge can be felt particularly acutely with somebody who has recently been wrongfully dismissed from their employment. While the common law may tell us that a terminated employee may be entitled to receive several more months compensation for their termination than what their employer is offering, often the high cost of litigation require the worker to accept less than they deserve.

But what if someone can have their day in court without the time and expense of trial and discoveries? In many wrongful dismissal cases, a summary judgment application may provide just that. Continue reading “Using Summary Trials in a Wrongful Dismissal Action”

The Risk of Fixed Term Employment Contracts

Most employment relationships are indefinite, meaning that the parties will continue working together until one of them exits the relationship (such as resignation, termination or retirement).

An alternative to indefinite term employment is the fixed term contract. These contracts are often used when a company is looking to hire someone for a relatively short period of time, such as to cover a maternity leave, complete a specific project with a fixed end-date or for seasonal employment such as camp counsellors. In scenarios such as this, the employer may introduce a written agreement at the start of employment stating a specific date for the contract’s completion. Continue reading “The Risk of Fixed Term Employment Contracts”

How a McDonald’s Employee received over $100,000 for Wrongful Dismissal

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The factors for assessing wrongful dismissal damages in Canada are well established, and will generally include the person’s age, tenure, the character of employment (or the degree of expertise or specialization) and other economic factors that may impact a person’s ability to find comparable work, such as education, the health of the local economy and the demand for her services.

To the chagrin of many, there is no universal formula for assessing wrongful dismissal damages. However, people in low-skill or semi-skilled jobs often do not receive extended notice periods due to the perceived availability of comparable work – a food service worker can arguably work as a cashier, a convenience store clerk or even a construction labourer. Continue reading “How a McDonald’s Employee received over $100,000 for Wrongful Dismissal”

Misrepresentation in Employee Recruitment : Feldstein v. 364 Northern Development Corporation

Employee recruitment, and particularly recruitment for highly competitive positions, often requires a certain amount of salesmanship on the part of recruiters, and companies looking to land a sought-after employee may tote company culture, compensation and other benefits of employment as part of their recruitment strategy.

Of course, all of this is fair game. However, as one recent BC Supreme Court decision illustrates, recruiters also need to be careful that everything they are presenting to potential candidates is honest and accurate. As one Vancouver tech company recently found out in Feldstein v. 364 Northern Development Corporation, 2016 BCSC 108, being over-zealous and under-cautious in promises to candidates can lead to a negligent misrepresentation lawsuit and thousands of dollars in damages. Continue reading “Misrepresentation in Employee Recruitment : Feldstein v. 364 Northern Development Corporation”

Working with Legal Weed – This Changes Everything… Or Does It?

marijuana

A key component of the Federal Liberal party’s election mandate is the legalization of recreational marijuana. While it’s believed that a fully functional legislative and regulatory scheme ending the prohibition of cannabis will not be ready for some time, the prospects of legalized cannabis in the workplace has some companies feeling a little dazed and confused.

Continue reading “Working with Legal Weed – This Changes Everything… Or Does It?”

Does the Restaurant Industry Discriminate Against Women?

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In celebration of International Women’s Day on March 8, 2016, the Ontario Human Rights Commission released a policy statement calling for an end to sexualized workplace dress codes that discriminate. OHRC Chief Commissioner Renu Mandhane was cited :

“Employers must make sure their dress codes don’t reinforce sexist stereotypes. They send the message that an employee’s worth is tied to how they look. That’s not right, and it could violate the Ontario Human Rights Code.

Continue reading “Does the Restaurant Industry Discriminate Against Women?”

Does the Restaurant Industry Discriminate Against Men?

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Men need not apply…

If you’ve ever been into Earl’s, Cactus Club, Moxie’s or one Canada’s many other trendy chain restaurants, you’ve probably noticed something about the restaurant’s wait staff. The servers are overwhelmingly (or exclusively) women under the age of 30. With few exceptions, men work in the kitchen or in management. The female servers will adopt a highly sexualized dress code with tight skirts, high heels and low cut tops, while any males in the “front of house” will wear a dress shirt and dress pants.

Continue reading “Does the Restaurant Industry Discriminate Against Men?”

Increasing Damages for Workplace Discrimination : The Presteve Foods Case

Presteve

Across Canada, Human Rights Tribunals have a unique role in our legal system by enforcing protections against discrimination provided by human rights legislation. As part of their mandate, these specialized tribunals have the authority to award damages and “make whole” victims of discrimination, including:

  • Damages for past and future wage loses;
  • Damages for loss of benefits and other perquisites of employment;
  • General damages for injury to dignity, feelings and self-respect.

Continue reading “Increasing Damages for Workplace Discrimination : The Presteve Foods Case”