CLE Online

Day 1: Thursday, May 5, 2022

Welcome and Land Acknowledgement (9:00 – 9:10)

Employment Law and COVID-19 (9:10 – 10:35)

Kara Ellison (she/her) — Pihl Law Corporation, Kelowna
Eleni Kassaris (she/her) — Dentons Canada LLP, Vancouver
Parmvir Padda — PortaLaw Corporation, Vancouver
Sean T. Pihl, KC (he/him) — Pihl Law Corporation, Kelowna

BREAK (10:35 – 10:50)

The Return to a "Post-normal" Workplace (10:50 – 11:25)

• current provincial/federal legislative issues around flexible work options
• occupational health and safety obligations
• the right to disconnect, including Ontario's recently proposed legislation and insights from international jurisdictions
• monitoring and evaluating performance and workplace conduct at home
• privacy and tech issues in a remote workplace

Linette Lubke (she/her) — Miller Titerle Law Corporation, Vancouver
Ryley M. Mennie (he/him) — Miller Titerle Law Corporation, Vancouver

Update on Restrictive Covenants—Drafting and Enforcement (11:25 – 12:15)

• review of recent BC case law with respect to restrictive covenants—notably non-competition and non-solicitation clauses
• effect of the increased reliance on remote work and globalized business models on restrictive covenants
• future of restrictive covenants in Canada given developments in other provinces
• practical implications for employer and employee counsel

Blair W. Curtis — Tevlin Gleadle Curtis Employment Law Strategies, Vancouver
Matthew E. McCarthy — Harris & Company LLP, Vancouver  

LUNCH (12:15 – 1:05)

Mediation of Employment Law Disputes (1:05 – 1:55)

• what is mediation
• barriers to mediation
• benefits of mediation
• mediation strategy

Sara Forte (she/her) — Forte Workplace Law, Surrey
Jessie K. Hadley (she/her) — Forte Workplace Law, Surrey
Nazeer T. Mitha, KC — Mitha Law Group, Vancouver

After-acquired Evidence/Cause (1:55 – 2:30)

• review of case law regarding the doctrine of after-acquired cause
• whether after-acquired cause/evidence is consistent with the employer's obligations to terminate in good faith and with honesty
• discussion of whether an employer who terminates an employee for cause can rely on evidence uncovered post-termination to bolster existing grounds or formulate new grounds of just cause OR are employers restricted to only those grounds and evidence they uncovered before or during the time of termination

Justin D. Wong — Roper Greyell LLP, Vancouver
Jim Wu (he/him) — Forte Workplace Law, Surrey

BREAK (2:30 – 2:45)

Update on Procedural Fairness in Investigations and Terminations (2:45 – 3:40)

• what is the content of the law on procedural fairness?
• what is the content of the law on good faith?
• how do these reconcile? 
• how are things currently being addressed and is it time for a new approach?

David M. Brown — Ascent Employment Law, Kelowna
Victoria Merritt (she/her) — Ascent Employment Law Corporation, Vancouver
Kirsten Hume Scrimshaw (she/her) — Ally Workplace Law, North Vancouver
Andrea C. Zappavigna (she/her) — Ally Workplace Law, North Vancouver

Employer Counsel vs. Employee Counsel Debate: Be It Resolved that Termination Provisions Providing for "Notice or Pay in Lieu of Notice in Accordance with the Employment Standards Act" Should (Or Should Not) Oust the Common Law Presumption of Reasonable Notice (3:40 – 4:30)

Maggie Campbell (she/her) — Roper Greyell LLP, Vancouver
Fred Wynne (he/him) — Tevlin Gleadle Curtis Employment Law Strategies, Vancouver

Day 2: Friday, May 6, 2022

Welcome (9:00 – 9:05)

Update from the Director of Employment Standards (9:05 – 9:50)

• Employment Standards Update
  • new leave entitlements
  • amendments to the Employment Standards Act and Employment Standards Regulations respecting employment of children
  • operationalizing the new child employment permitting requirement
  • passage of most (but not all) of the rest of Bill 8, the Employment Standards Amendment Act, 2019
  • the Employment Standards Branch's move to an investigation model
• Temporary Foreign Workers Update
  • overview of the new Temporary Foreign Worker Protection Act
  • full implementation of the Temporary Foreign Worker Protection Act, including establishment of an employer registry, recruiter licensing, and a dual complaints process
• Director's "Tips"
  • for counsel and HR professionals who deal with the Employment Standards Act and the Temporary Foreign Worker Protection Act

Mary Walsh — Acting Executive Director, Ministry of Labour – Employment Standards Branch, Richmond

Managing Issues with Employee Leaves (9:50 – 10:25)

• different types of available leave (ESA or Human Rights or unpaid)
• what information can be requested, in particular, medical/family status/religion contexts
• common issues that arise and best practices

Laura DeVries (she/her) — McCarthy Tétrault LLP, Vancouver
Donovan G. Plomp (he/him) — McCarthy Tétrault LLP, Vancouver 

BREAK (10:25 – 10:40)

Oppression Remedy Update (10:40 – 11:30)

• brief overview of the statutory scheme under s. 227 of the BCA and available remedies
• who has standing to make a complaint under s. 227 of the BCA
  • the obvious (employee shareholders) vs. the less obvious ("any other person whom the court considers to be an appropriate person to make an application under," s. 227) with discussion of cases such as Madco Investments Ltd. v. Western Tank & Lining Ltd., 2017 BCSC 217 concerning complaints by non-shareholders
• circumstances where termination of employment (including constructive dismissal) is found to be oppressive under the BCA
• circumstances where termination of employment is not itself oppressive but is taken into account in assessing other potentially oppressive conduct (with discussion of Dubois v. Milne, 2020 BCCA 216)
• directors' personal liability for oppression
• practical considerations for counsel prosecuting and defending employment-related oppression claims

Colin J. Edstrom (he/him) — Pushor Mitchell LLP, Kelowna 
Richard Truman — Cooperwilliams Law, Vancouver

Vicarious Liability and Sexual Misconduct in the Workplace (11:30 – 12:30)

• update on the general law and public policy reasons for vicarious liability at the workplace as per the Supreme Court of Canada (Bazley, Sagaz, London Drugs, Fullowka)
• examination of sexual assault claims against employers based on vicarious liability for actions of employees or agents of the employer (examples where employer liable and not liable based on applicable tests)
• responsibility of employers for employee actions under the Human Rights Code (Robichaud and Schrenk)
• discussion of two interesting indemnity issues: (1) employer's common law right of indemnity against the employee for damages paid; and (2) employee's implied right to be indemnified by employer against consequences where the act is authorized by the employer
• practical tips and risk management steps for organizations to avoid vicarious liability 

Navpreet Chhina (she/her) — Inlet Employment Law, Burnaby 
Christopher Drinovz — KSW Lawyers, Surrey
Jesse Dunning — KSW Lawyers, Abbotsford
Tanvir Sanghera (she/her) — Inlet Employment Law, Port Moody

LUNCH (12:30 – 1:20)

Trans Rights/Employer Responsibilities (1:20 – 2:10)

• gender identity and gender expression case law relating to the workplace
• elements of a gender-affirming workplace

Adrienne S. Smith (they/them) — Adrienne Smith Law, Vancouver
barbara findlay, KC (she/her) — barbara findlay QC Law Office, Vancouver 

BREAK (2:10 – 2:25)

Multi-jurisdictional Employment Relationships (2:25 – 3:05)

• issue spotting when employing workers outside of an employer's jurisdiction
• review of relevant legislation and case law concerning multi-jurisdictional work
• issues specific to hiring in Quebec

Simon Kent (he/him) — Kent Employment Law, Surrey
Michael James Schalke — Gowling WLG (Canada) LLP, Vancouver

Law Without Pandemics: 2022's Case Law Update (3:05 – 3:55)

• consequential cause cases
• daunting damage decisions
• notable notice narrations
• memorable miscellaneous memoranda

Gradin D. Tyler (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver
Cameron R. Wardell (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver

Closing Comments (3:55 – 4:00)