Retirement Benefits: Negligent Misrepresentation

Posted by Johannes Schenk on November 18th, 2005 — Posted in Employment Law, Labour Law

Employer misrepresentations made to employees are more frequently becoming the subject of Court action. Now you can add misrepresenation by a Workers Compensation agency to that list.

The case, Mandavia v. Central West Health Care Institutions Board, 2005 NLCA 12 (CanLII), concerns misrepresentations made by an employer and the Newfoundaland Workers Compensation agency to a retiring worker. The misrepresentation concerned the worker’s retirement benefits and their effect on his WCB benefits. Had the worker received the correct information he would have retired at a later time with a different benefit allotment. The effect of the misrepresentation was to reduce the benefits available to the worker when he retired.

The Newfoundland Court of Appeal held that both the employer and the Workers Compensation agency had a duty to retiring employees to ensure that they received complete and accurate information regarding the conditions of their retirement and the benefit allotment that they would receive. The employer and the Workers Compensation agency were held to be equally liable for the worker’s damages flowing from the consequences of their bad advice.

The case is interesting because the misrepresentation is based on misleading statements made to the worker and a failure to provide complete and accurate information to that worker. The case is also notable because the employer’s liability , in part, stems from failing to verify information provided to the worker by the Workers Compensation agency.

In addition, the case makes clear that employers must be scrupulously careful in outlining benefits to their employees. This will be the case wherever the employee stands to lose an advantage or monetary benefit when acting on the employers advice. It’s also not enough to rely on what a statutory board has to say about the matter. As an employer you must ensure that the information given to employees is factually correct and complete.

Negligent Governance: No Liability

Posted by Johannes Schenk on November 17th, 2005 — Posted in Municipal Law

Negligence on the part of governmental authorities is a difficult matter to prosecute. This theme is repeated in a number of legal areas including, policy defences and the fallout from various legislative processes, and plays itself out in another recent BC Court of Appeal case, Kimpton v. Canada (A.G.) and British Columbia (HMTQ), 2004 BCCA 72. Here the plaintiffs were suing the BC Provincial government and the Federal government over the National Building Code that allegedly led to the leaky condo disaster. The National Research Council, as advisors and agents, of the Federal government in regards to the National Building Code, were also included as defendants.

In a nutshell the matter was dismissed because the process that led to the creation of the National Building Code was a matter of lawmaking not open to challenge in the Courts. Justice Huddart having this to say:

[6] As I view the case against British Columbia, there is only one issue. In my view the chambers judge correctly found the creation and establishment of the BCBC to be an act of lawmaking. See Welbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg, [1971] S.C.R. 957. Immunity from the application of tort law flows from that fact. As the chambers judge noted at paragraph 63 of his reasons for judgment, “[t]o the extent a government negligently governs, the voting public may impose a political consequence at an election.” It follows I would not accede to the grounds of appeal that apply to British Columbia.

[7] Nor would I accede to the grounds of appeal with regard to the claim against Canada. I am not persuaded the chambers judge erred when he held that the National Research Council was not in a relationship of sufficient proximity with the appellant to give rise to a private law duty of care. The appellant presented no authority establishing a duty of care on any advisor to a legislative body. And that is the role of the National Research Council with regard to the NBC. The National Research Council is a creature of statute. Parliament created it to have “charge of such matters affecting scientific and industrial research as the Governor in Council may assign to it” National Research Council Act, R.S., c. N-14, s. 4. Included in such matters was the development of a model building code to assist municipalities in enacting building bylaws and the construction industry by having uniform national building standards.

[8] To the extent the appellant and others in her very unhappy situation may have been injured by the alleged negligence in the preparation or dissemination of the NBC, their reliance can only be on British Columbia, whose Legislature authorized the making of the regulation adopting the NBC by reference, with the effect of a municipal building bylaw, an act of lawmaking, as I have said, beyond review by a court in the conduct of tort law.

The case presents what might be considered a harsh result. The underlying principle is, however, longstanding and seen in a wide range of scenarios involving legislative and quasi-legislative decision making.

IBP v. Alvarez; Tum v. Barber Foods

Posted by Johannes Schenk on November 12th, 2005 — Posted in Employment Law, Labour Law

The United States Supreme Court has rendered a decision in IBP v. Alvarez and Tum v. Barber Foods. Both cases were heard in early October, 2005. The Court holds in these two matters that workers must be paid for time spent donning safety gear and walking from the location in which they don that gear to their work stations. There is no requirement to pay workers for the time they are required to wait to put on their safety gear.

The case seems to have caused somewhat of a stir in American labour law circles and is an interesting read for that reason alone.

Municipal Occupiers Liability

Posted by Johannes Schenk on November 11th, 2005 — Posted in Municipal Law

Municipalities, by virtue of the wide array of services they provide and their extensive landholdings, are subject to the full spectrum of occupiers liability and other negligence type claims.

One such category of claim is the diving accident. These are difficult cases for a local authority to deal with because they usually involve a catastrophically injured plaintiff who will require a lifetime of assistance, financial and otherwise. The tendency in these matters is to find a way to compensate the injured party by elevating the municipality to the role of insurer as opposed to occupier.

The BC Court of Appeal dealt with a serious diving injury in, Duddle v. Vernon (City), 2004 BCCA 390. The case involved a young man who dove off a public pier into a shallow lake. The trial Judge found the muncipality had not done all that it could to prevent the plaintiff’s injury as opposed to reviewing the matter on a “reasonable in the circumstance” standard. The Court of Appeal reversed a finding that the municipality was liable for the plaintiff’s injury making it clear that a standard of perfection did not apply.

The case is a useful read for the Court’s position on the extent of a local authority’s duty to take reasonable care to protect and safeguard members of the public using municipal facilities.

Pre-Hearing Disclosure of Medical Records: Ryan Orders

Posted by Johannes Schenk on November 6th, 2005 — Posted in Human Rights Law, Labour Law

Administrative tribunals generally have a high degree of flexibility in determining what evidence they will hear in a given matter. They are not bound by the same rules of evidence that govern proceedings in Court. This brings on a degree of variability and uncertainty into administrative hearings that can make navigating these waters challenging for even the most experienced counsel. Given that tribunal decisions are, for the most part not binding, Court decisions in these matters are particularly useful.

A recent BC Court of Appeal decison, British Columbia v. British Columbia Government and Service Employees’ Union, 2005 BCCA 14, considers the issue of pre-hearing disclosure of medical records, including psychological records, of an employee making a benefits claim.

The decision examines Jones, Halliday and Ryan orders in the context of a labour arbitration and gives an extensive summary of the case law and arbitral jurisprudence in this complex and varied area of evidentiary procedure.

The case is a good authority for matters involving pre-hearing disclosure of medical records and is a useful read for anyone dealing in this difficult area of law.