Employment Law Conference 2023: Combo

Course Date: May 4, 2023

Full Course Materials
Total: 11h 56min
Total Ethics: 2h 30min

Day 1
Thursday, May 4, 2023

Welcome and Land Acknowledgement (9:00 – 9:15)

Genevieve Chang (she/her) — Program Lawyer, CLEBC, Vancouver
Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver

Broadening the Horizons of Employment Law: A comparative Review of Ontario Notice Periods (9:15 – 10:20)

  • overview of general reasonable notice principles
  • review of recent Ontario case law relating to reasonable notice, including:
    • issues of contractual interpretation
    • impact of COVID-19 on the reasonable notice assessment
    • mitigation issues
    • exceptional circumstances warranting reasonable notice over the upper limit
  • discussion of similar or diverging trends in BC

Navpreet Chhina Inlet Employment Law, Burnaby
Micah Goldberg Watson Goepel LLP, Vancouver 
Michelle McKinnon (she/her) McMillan LLP, Vancouver
Nazanin Panah (she/her) Inlet Employment Law, Port Moody

BREAK (10:20 – 10:35)

Environmental Scans, Workplace Assessments, Cultural Scans—What on Earth Are We Talking About (10:35 – 11:40)

  • what are we talking about? What are these "alternative" workplace investigations and when would you want to use them 
  • what is involved in conducting them—nuts and bolts of how to conduct them and how they are different from a traditional workplace investigation
  • what are their limitations and how can they be used to help restore trust and peace within the workplace
  • best practices for investigators and clients hiring someone to conduct these scans 
    • importance of trauma-informed lens
    • confidentiality is key
    • sample terms of reference
    • creativity is important—tailor them to the needs of the client

Jessica Forman (she/her) Forte Workplace Law, Surrey 
Sarah Lumsden (she/her) Southern Butler Price LLP, North Vancouver
Lou Poskitt Miller Titerle + Co., Vancouver

Mitigation of Damages (11:40 – 12:30)

  • mitigation in general
  • onus and threshold
  • issues in focus
    • overview of what is and is not considered acceptable forms of mitigation effort
    • re-employment or continuing employment with the dismissing employer
    • moonlightingis continuing employment on the "other job" considered mitigation
    • sale of a business
    • evidentiary issuesshow me the proof
  • practical guidancetop tips for defendants and plaintiffs

Jeffrey Bastien (he/him) Dentons Canada LLP, Vancouver
Richard B. Johnson (he/him) Ascent Employment Law Corporation, Vancouver

LUNCH with Featured Speaker: Truth and Reconciliation (presenting remotely at 1:15) (12:30 – 2:15)

Ellis RossMLA for Skeena and Official Opposition Shadow Minister for Energy and LNG, Terrace

Post-COVID Constructive Dismissal Update (2:15 – 3:20)

  • brief refresher on the test for constructive dismissal, including the two branches of the Potter test
  • COVID era lessons on when introducing new policies or job requirements (Potter branch 1) constitute a constructive dismissal, including:
    • Parmar on mandatory vaccination policies
    • Benke on masking policies
  • recent cases of constructive dismissal based on "series of employer actions"  (Potter branch 2), including toxic/intolerable working environment
  • reorganizations: when can role changes with no reduction in compensation constitute a constructive dismissal

Sebastian Chern (he/him) Howard Employment Law Corporation, Vancouver
J. Geoffrey Howard (he/him) Howard Employment Law Corporation, Vancouver
Salim Visram (he/him) Dentons Canada LLP, Vancouver

BREAK (3:20 – 3:35)

Professional Responsibility and Legal Ethics in Employment Law (3:35 – 4:45)

  • panel discussion regarding ethics and professional responsibility in the context of employment law
  • common ethics issues that arise for employment lawyers considered from a variety of vantage points
  • practical guidance on how to identify and address ethical issues, and the resources available to lawyers to assist them

Heather M. Hettiarachchi (she/her) Integritas Workplace Law Corp., Richmond 
Connor F. Levy (he/him) Miller Titerle + Co., Vancouver 
Claire L. Marchant (she/her) Director, Practice Advice and Equity Ombudsperson, Law Society of BC, Vancouver

Reception (Coast Coal Harbour Hotel, Grouse Room, 4th Floor) (4:45 – 6:30), hosted by:

Day 2
Friday, May 5, 2023

Welcome (9:00 – 9:05)

Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver

The Injured Workers' Return to Work and WorkSafeBC's Vocational Rehabilitation (9:05 – 9:55)

  • overview of WorkSafeBC's claim adjudication for injured workers whose disability resolves or remains permanent after it reaches a plateau with emphasis on returning to work 
    • "selective/light employment" options for workers deemed temporarily disabled under WorkSafeBC's policy (WCAT-2008-00584: factors to be considered when determining whether it is unreasonable for a worker to refuse selective light employment); discuss the financial benefits of providing "selective/light employment" for employers
    • vocational rehabilitation: return to work with the employer in an alternate job (gradual return to work plans, modified duties, etc.)
    • vocational rehabilitation: identify a suitable return to work goal for employment with a new employer in the same or related industry
    • vocational retraining in an alternate career
  • Bill 41's mandate on an injured worker's return to the workplace: reciprocal duty to cooperate between the worker and employer and the employer's duty to maintain employment for injured workers
  • employer responsibility to adhere to the BC Human Rights Code while engaged with WorkSafeBC and an injured worker's return to work
  • status update on ICBC's "No Fault" impact on WorkSafeBC claims

Christopher Drinovz (he/him) KSW Lawyers, Surrey 
Alejandra (Ale) Henao (she/her) KSW Lawyers, Surrey

BREAK (9:55 – 10:10)

Contracts "with Benefits": There Are Always "Strings Attached" (10:10 – 11:00)

  • key things every policyholder (employer) should know about their group benefits policy 
  • considerations in administering group benefit plans
    • at the start of employment
    • when an employee goes on disability leave
    • when employment ends
  • overlap between statutory benefits and private benefits (WorkSafe, EI, Pensions)
  • key cases with employer liability

Sarah Hentschel (she/her) Watson Goepel LLP, Vancouver
Graham Nattress (he/him) Overholt Law LLP, Vancouver

Serving the Cause of Justice: Addressing Issues of Race and Culture in Employment Law (11:00 – 12:00)

  • anti-racism
  • how do we assist our clients with workplace issues related to race/culture?
  • what are our obligations to ourselves?
  • what are our obligations as employees or partners in law firms?

Anita Atwal (she/her) Anita Atwal Law Corporation, Surrey
Pamela Costanzo (she/her) Roper Greyell LLP, Vancouver
Greg Heywood (he/him) Roper Greyell LLP, Vancouver

LUNCH with Featured Speaker: Class Actions and the Hostile Workplace: Lewis v. Westjet Airlines Ltd., 2022 BCCA 145 (at 1:00) (12:00 – 1:45)

  • hostile workplaces and the Bhadauria/Honda Doctrine (i.e., should a tort of "discrimination" be recognized?)
  • circumventing the Bhadauria/Honda Doctrine
  • can human rights complaints effectively address hostile workplaces? 
  • reimagining hostile workplace claims as breach of contract claims (Lewis v. Westjet)
  • practical problems with the Lewis v. Westjet approach
  • what about unionized workplaces? (Northern Regional Health Authority v. Horrocks, 2021 SCC 42)

Professor Kenneth ThornicroftPeter B. Gustavson School of Business, UVic, Victoria

Employment Standards Update (1:45 – 2:35)

  • program and legislative update
    • new and "old" ESA legislation gets implemented
    • demand for services increases
    • Branch and Ministry response
    • on the horizon
  • case law developments

Michael Thompson (he/him) Decision Maker/Team Leader, Ministry of Labour – Employment Standards Branch, Richmond 
Mary Walsh Executive Director, Ministry of Labour – Employment Standards Branch, Richmond

BREAK (2:35 – 2:50)

Spicier than Your Average Peppercorn: Update Regarding Applicable Legal Principles and Case Law Respecting Consideration and Other Issues Surrounding Entering Into Amended Employment Agreements (2:50 – 3:40)

  • brief overview of the history of the law of consideration both generally and in the employment context
  • recent developments with respect to consideration in the employment context, including regarding contractual amendments, good faith and fairness of contractual bargains/unconscionability, and "sufficiency" of consideration
  • recent developments regarding entering into new/amended employment agreements
  • overview of strategies to increase the likelihood that changes to an employment agreement will be enforceable

Kimberly Gosel (she/her) Borden Ladner Gervais LLP, Vancouver 
Samantha Stepney (she/her) Borden Ladner Gervais LLP, Vancouver 

Case Law Update (3:40 – 4:40)

Erin Brandt (she/her) PortaLaw Corporation, Vancouver
James Hsu (he/him) PortaLaw Corporation, Vancouver
Gradin D. Tyler (he/him) Mathews, Dinsdale & Clark LLP, Vancouver
Cameron R. Wardell (he/him) Mathews, Dinsdale & Clark LLP, Vancouver

Closing Comments (4:40 – 4:45)

Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver