Posted by Admin on February 17th, 2010 — Posted in Labour Law, Employment Law, Human Rights Law
A very common issue that arises in administrative law: more than one body can hear, rule and decide on a matter. The follow up issue arises: which body should run that process. Further, once you have an answer from one body, does that preclude another body from taking a look at the matter all over again. The labour lawyers worked this one out with Weber and Parry Sound several years ago.
We now have the latest word on this complicated issue from the BC Court of Appeal in the context of human rights adjudication and workers compensation disability reviews in Workers’ Compensation Board v. British Columbia (Human Rights Tribunal) , 2010 BCCA 77.
Briefly, and I emphasize briefly, as this is a very complicated series of arguments that underlie the decision, the human rights tribunal does get to hear a matter despite the fact that the matter has been canvassed by another tribunal. Res judicata, estoppels, and abuse of process arguments don’t prevent the tribunal from taking a look at the matter.
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Posted by Johannes Schenk on February 11th, 2010 — Posted in Municipal Law, Professional Discipline
See Perrault v. North Vancouver (District), 2010 BCSC 182, for a discussion on liability for the District of North Vancouver and the realtors involved in the sale and purchase of the property.
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Posted by Johannes Schenk on December 8th, 2009 — Posted in Employment Law, Human Rights Law
In case it wasn’t obvious, reasonable notice periods are suspended by maternity leave. Don’t terminate your pregnant employees or employees that are on maternity leave. See the following cases:
Whelehan v. Laidlaw Environmental Services Ltd.
Winterburn v. Domtar Inc., 2002 BCSC 1418
Wells v. Patina Salons Ltd., 2003 BCSC 1731
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Posted by Johannes Schenk on December 7th, 2009 — Posted in Employment Law
Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, deals with the issue of whether rights under the Employment Standards Act can form the basis of a civil action. Answer: no.
Mr. Justice Chiasson states for the Court:
Summary
[100] In my view, the learned chambers judge erred in concluding that rights granted by employment standards legislation are incorporated into employment contracts as a matter of law regardless of the intentions of the parties. The cases relied on by the chambers judge do not support such a conclusion.
[101] The proper analysis begins with Orpen: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract.
[102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available.
[103] In this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action.
This authority is not inconsistent with the caselaw that holds an employer cannot contract for less than the minimum statutory notice periods.
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Posted by Admin on October 6th, 2009 — Posted in Uncategorized
M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., 2008 BCSC 1432, lays out a great professional reputation defamation analysis applicable to contract and employment scenarios.
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