CLE Online

Day 1: Thursday, September 17, 2020

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

Hot Topics in Employment Law on COVID-19 (9:10 – 10:10)

Eleni Kassaris — Dentons Canada LLP, Vancouver
Dianne Rideout — McMillan LLP, Vancouver 

BREAK (10:10 – 10:30)

Update on Liability Arising from Pre-employment Statements (10:30 – 11:20)

• basic elements of the torts of negligent misrepresentation and fraudulent misrepresentation and their application in employment law
• the statutory prohibition on misrepresentation under s. 8 of the Employment Standards Act
• availability of aggravated and punitive damages for the torts of negligent and fraudulent misrepresentation
• effect of pre-employment statements during recruitment on reasonable notice by way of the doctrine of inducement and "near-inducement"
• enforceability of "entire agreement" clauses in employment contracts, including a comparison in approaches in BC and Ontario (with a discussion of Kielb v. National Money Mart Co., 2017 ONCA 356 and Feldstein v. 364 Northern Development Corporation, 2017 BCCA 174)
• effect of Bhasin v. Hrynew, 2014 SCC 71 and the common law duty of honest performance in contracts on "entire agreement" clauses

Kirsten Hume Scrimshaw — Ally Workplace Law Corporation, Vancouver
Richard Truman — Cooperwilliams Law, Vancouver

BREAK (11:20 – 11:40)

All Eyes on You: Privacy in the Workplace—A Review of the Law and Recent Developments (11:40 – 12:30)

• review of the legislative privacy framework
• evolution of the reasonable expectation of privacy, including a discussion of R v. Jarvis, 2019 SCC 10
• applying lessons learned from the case law to the employer-employee relationship
• reviewing the new common law tort of "publicity which places a person in a false light" established in Yenovkian v. Gulian, 2019 ONSC 7279
• the test for reasonable surveillance and how the courts and other decision makers have dealt with GPS and other surveillance
• impact of privacy rights on the admissibility of evidence and related evidentiary issues, including recording conversations and the use of evidence obtained unlawfully in litigation
• application of privacy principles in the time of COVID-19

Matthew Larsen — Fasken Martineau DuMoulin LLP, Vancouver
Fiona H. McFarlane — Kent Employment Law, Vancouver
Kristen Woo — Fasken Martineau DuMoulin LLP, Vancouver

LUNCH (12:30 – 1:10)

Artificial Intelligence in Human Resources Management: Legal Issues
(1:10 – 1:50)

Gwendoline Allison — Foy Allison Law, West Vancouver
Kirsty Foy — Foy Allison Law, West Vancouver

BREAK (1:50 – 2:10)

Diversity, Inclusion, and Unconscious Bias for People with Disabilities
(2:10 – 2:55)

• benefits of inclusion for people with disabilities
• trends related to inclusion of people with disabilities
• overview of the upcoming legislation regarding people with disabilities in the workforce

Stephen O’Keefe, LLB

BREAK (2:55 – 3:15)

The Competing Employee—Strategic and Legal Considerations for Counsel from Planning the Departure to Trial/Enforcing Restrictive Covenants and Proving Damages (3:15 – 4:15)

• strategic and legal issues for counsel advising a party in the context of the movement of employees from one employer to a competitor employer, including:
  • initial advice to the employee concerning: enforceability of restrictive covenants, potential status as a fiduciary, addressing potentially confidential information, and reasonable notice of resignation
  • an employer's perspective on protecting your business from potential defections, including: drafting enforceable restrictive covenants, clawbacks and forfeiture clauses for competing employees, and what to watch for to detect potential defections
  • independent legal advice for departing employees—role of the employees' counsel
  • dealing with the initial departure
  • best practices from the Notice of Civil Claim to Trial

Dean A. Crawford, QC — Pulver Crawford Munroe LLP, Vancouver
Donovan G. Plomp — McCarthy Tétrault LLP, Vancouver

Day 2: Friday, September 18, 2020

Welcome (9:00 – 9:05)

Enforceability of Termination Clauses and Mitigation: How We Arrived at Quach v. Mitrux (9:05 – 10:00)

• general principles regarding enforceability of termination clauses
• recent BC and Ontario decisions regarding the interpretation of termination clauses
• are BC and Ontario consistent in their interpretation of termination clauses?
• an overview of BC and Ontario's approach to mitigation of damages with a focus on fixed-term contracts
• Quach v. Mitrux, 2020 BCCA 5

Nicole R. Howell — HHBG Employment Lawyers, Vancouver
Rosie Schlagintweit — HHBG Employment Lawyers, Vancouver

BREAK (10:00 – 10:20)

Employment Lawyers' Guide to Employment Insurance ("EI") (10:20 – 11:15)

• how to use EI as a tool for employment litigation in other fora including:
  • Privacy Act requests
  • issue-estoppel
  • practice tips before the Social Security Tribunal

Steven R. Barker — Tevlin Gleadle Curtis Employment Law Strategies, Vancouver
Jim Wu — Forte Law Corporation, Surrey

BREAK (11:15 – 11:35)

How to Successfully Navigate the Unjust Dismissal Provisions of the Canada Labour Code: A Practical Guide for Employer and Employee Counsel/Life After Wilson—Case Law Review and Analysis Post Wilson v. Atomic Energy of Canada Ltd. (11:35 – 12:20)

• exceptions to the unjust dismissal provisions, including management status
• review of the remedies under the Code, including the default remedy, reinstatement
• review of the adjudication process
• impact of settlements reached between employers and employees on termination (spoiler: they are not binding)
• overview of how employers should structure their terminations in order to be able to successfully defend unjust dismissal complaints
• case law review and analysis post Wilson v. Atomic Energy of Canada Ltd.

Maggie Campbell — Roper Greyell LLP, Vancouver
Ryley M. Mennie — Miller Titerle Law Corporation, Vancouver

LUNCH (12:20 – 1:00)

Employment Standards Update (1:00 – 1:45)

• update on the Employment Standards Act and the Temporary Foreign Worker Protection Act
• update on what ESB is doing internally to operationalize the changes
• case update from the tribunal and/or the courts dealing with the ESA

William (Bill) C. Boyte — Executive Director, Ministry of Labour – Employment Standards Branch, Victoria
Jennifer O’Rourke — BC Labour Relations Board and Employment Standards Tribunal, Vancouver

BREAK (1:45 – 2:05)

The Scope of the Duty of Good Faith in an Employment Relationship and the Remedies Available where an Employer Breaches that Duty (2:05 – 2:50)

• review of SCC decision David Matthews v. Ocean Nutrition Canada Limited that addresses the post—Bhasin scope of the duty of good faith in an employment relationship and whether an exclusionary clause in an employee incentive program could be invalidated by bad faith conduct on the part of the employer
• assessment of the decision and its consequences for employers and employees across Canada—leavened by what I learned about the case as one of the counsel of record
• other recent developments on the duty of good faith in an employment context

David D. McWhinnie — Tevlin Gleadle Curtis Employment Law Strategies, Vancouver
Nazeer T. Mitha, QC — Harris & Company LLP, Vancouver

BREAK (2:50 – 3:10)

Case Law Update (3:10 – 3:55)

• key cases
• analysis and trends
• effects on practice

Gradin D. Tyler — Mathews, Dinsdale & Clark LLP, Vancouver
Cameron R. Wardell — Mathews, Dinsdale & Clark LLP, Vancouver

Closing Remarks (3:55 – 4:00)