Employment Law Conference 2014

Course Date: May 8, 2014

Total: 12h 5min

Day 1: Thursday, May 8, 2014

Welcome and Introduction

Matthew Cooperwilliams — Harris & Company LLP, Vancouver
Simon K. Kent — Kent Employment Law, Vancouver

Drug and Alcohol Testing in the Workplace

  • update on Irving Pulp and Paper 2013 SCC 34
  • pre-employment drug tests
  • post-accident testing
  • reasonable cause testing
  • random drug tests following return to work after treatment for drug abuse
  • medical marijuana and the workplace

Kenneth R. Curry — BC Government and Service Employees’ Union, Burnaby
Kim G. Thorne — Roper Greyell LLP, Vancouver

Employers' Obligations When Employee Transitions from One Gender to Another

  • privacy issues
  • washrooms
  • advising other staff
  • policies

barbara findlay, QC — The Law Office of barbara findlay, QC, Vancouver
Elizabeth A. Reid — Boughton Law Corporation, Vancouver

Networking Break

Restrictive Covenants: Recent Developments, Alternatives, and the Death of the Interim Injunction

  • notable recent cases
  • interpretation of restrictive covenants in the context of
    • employment
    • employment following sale of a business
    • grey areas
  • practical alternatives to restrictive covenants ("golden handcuffs" and "penalties" )
  • abandoning the use of interim injunctions
  • impact of restrictive covenants on reasonable notice
  • drafting tips

Blair W. Curtis — TevlinGleadle Employment Law Strategies, Vancouver
Valerie S. Dixon — Miller Thomson LLP, Vancouver

Termination and Human Rights Considerations—A Practical Discussion of Satisfying the Duty to Inquire and Accommodating to the Point of Undue Hardship

  • duty to inquire and recent cases
  • when duty will arise based on case examples
  • when to advise employers that they cannot act on employee misconduct without inquiring as to existence of disability
  • tribunal and court’s review of when employer’s duty to accommodate to point of undue hardship test will be met

Michael A. Watt — Alexander Holburn Beaudin + Lang LLP, Vancouver

Lunch with Featured Speaker: "A View from the Bench"

The Honourable Madam Justice Wendy J. Harris — Supreme Court of BC, Vancouver

Interpretation or Enforcement of Termination Clauses that Limit Severance Pay

  • case law update on such termination clauses
  • interpretation by the court of common words and phrases used in such clauses (“at least”, “minimum”, “not less than”)
  • tips for drafting and attacking such termination clauses
  • case law update on Shore v. Ladner Downs, 160 DLR (4th) 76; 52 BCLR (3d) 336
  • case law update on contractual severance payments and the duty to mitigate

David D. McWhinnie — TevlinGleadle Employment Law Strategies, Vancouver
Jennifer D. Wiegele — Kent Employment Law, Vancouver

Networking Break

Little Known but Potentially Expensive Liabilities under Employment Standards Legislation and How to Avoid Them

  • vacation pay on non-base pay: an often-overlooked but increasingly common claim
  • liabilities for employee costs arising from the prohibition on employees paying an employer’s “business expenses” under the ESA
    • home office costs
    • work use of personal vehicles
  • liability for non-core working time
    • weekend/evening emailing and calls
    • donning/doffing time
    • travel time: what counts as working time and what does not
    • training time
  • sometimes surprising liabilities resulting from transfer of a business: termination notice/pay liability on asset sale to employees who continue with purchaser
  • overtime claims by highly paid professionals

J. Geoffrey Howard — Gowling Lafleur Henderson LLP, Vancouver
Christopher Munroe — Gowling Lafleur Henderson LLP, Vancouver

The Deductibility of Pension and Disability Benefits from Damages Awarded for Wrongful Dismissal

  • a review of the authorities on what is described as “ double recovery” where an employee claims damages for loss of income and the loss of pension and disability benefits
  • the significance of the change in the law of mandatory retirement on pensions and the rights and obligations of employees and employers
  • the BC Court of Appeal decision and the anticipated decision of the Supreme Court of Canada in Waterman v. IBM Canada Limited
  • does the decision in Waterman v. IBM have any application in the disability benefits context?
  • does Girling v. Crown Cork and Sylvester v. BC remain the law in this area?
  • what are the implications of the Waterman v. IBM decision for employers and employees?

Carman J. Overholt, QC — Overholt Law Corporation, Vancouver
Jennifer Kwok — Overholt Law Corporation, Vancouver

Closing Questions and Comments

Matthew Cooperwilliams — Harris & Company LLP, Vancouver
Simon K. Kent — Kent Employment Law, Vancouver

Day 2: Friday, May 9, 2014

Welcome and Introduction

Matthew Cooperwilliams — Harris & Company LLP, Vancouver
Simon K. Kent — Kent Employment Law, Vancouver

Offering Continued or Re-employment at the Time of/Subsequent to Terminadion

  • the legacy of the SCC’s decision in Evans v. Teamsters
  • the concept of repudiation of employment contracts
  • overlap in analysis: constructive dismissal and reasonable re-employment in mitigation
  • re-employment after actual dismissal, layoffs, or allegations of cause
  • repudiation by commencing proceedings against an employer
  • repudiation and working notice
  • offering re-employment and the “without prejudice” doctrine
  • practical points and issues at the end of employment

Martin Sheard — TevlinGleadle Employment Law Strategies, Vancouver
Cameron Wardell — Harris & Company LLP, Vancouver

"If Only We'd Settled"—Cautionary Tales from Enforcement of the Employment Standards Act

  • review of the 1995 Employment Standards Act’s purposes, including the providing of “fair and efficient” procedures for resolving disputes
  • overview of the Director’s and the Tribunal’s authority to interpret and enforce the ESA
  • summary of the statutory ESA entitlements
  • examples of heavily litigated matters that have come out of the Act’s enforcement and appeal processes
  • utilizing the Director’s mediation services to settle

Michelle J. Alman — Legal Services Branch, Ministry of Justice, Vancouver

Networking Break

Implications for Employment Law of the Decriminalization of Prostitution

  • review of the Bedford case
  • review of the forms of prostitution
  • review of employment laws that would be engaged and how each would be engaged with respect to decriminalized prostitution
    • common law of employee vs. independent contractor
    • employment standards legislation
    • labour relations legislation
    • human rights legislation
    • workers compensation and occupational health and safety legislation
    • employment insurance legislation
  • other areas of concern, such as liability issues over
    • the presence of prostitution in certain workplaces such as logging camps, ships, and hotels
    • the effect of striking the communication in public provision in industries such as the hospitality and entertainment industries

Gwendoline Allison — Foy Allison Law Group, West Vancouver

Foreign Worker Issues for Employment Lawyers

  • overview of the work permit application process, including labour market opinion-based work permits and labour market opinion-exempt work permits
  • issues for employers to be aware of when hiring foreign workers
  • issues for employers to be aware of when terminating foreign workers
  • new enforcement and compliance regime applicable to employers of foreign workers
  • changes to the labour market opinion application process and implications for employers
  • best practices for employers of foreign workers

Susan J. Martyn — Egan LLP, Vancouver

Lunch with Featured Speaker: "Prevention of Workplace Bullying and Harassment and Coverage for Mental Disorders"

Kathleen Fleming — Client Service Manager, Mental Health Claims Unit, WorkSafeBC, Richmond

Policy Issues in Employment Law

  • reasonable notice
  • correlation of duties owed by employees and employers
  • required resignation at age 65
  • access to justice

Richard H. Hamilton, QC — Hamilton Howell Bain & Gould, Gabriola Island
D. Murray Tevlin — TevlinGleadle Employment Law Strategies, Vancouver

Networking Break

Update on Just Cause Cases

  • recent case law update
  • practical issues facing just cause dismissals

Michael R. Kilgallin — Roper Greyell LLP, Vancouver
Paul M. Pulver — Coutts Pulver LLP, Vancouver

Assessing Damages for "Other" Remuneration: Commission, Bonus, Stock Options, and Anticipated Salary Increases

  • Introduction: governing principles from the law of contract
  • Special issues raised by commissions and stock options
  • When can the employee claim for anticipated salary increases and bonus income
  • Damages for lost benefits

Peter W. Lightbody — Richards Buell Sutton LLP, Vancouver
H. Scott MacDonald — Richards Buell Sutton LLP, Vancouver

Closing Questions and Comments

Matthew Cooperwilliams — Harris & Company LLP, Vancouver
Simon K. Kent — Kent Employment Law, Vancouver