David M. Brown
Employment law used to move slowly… There would be changes to the law and legislation, for sure, but these evolutions were predictable and gradual.
In 2020, COVID-19 turned these expectations upside-down, as lawyers and courts quickly adjusted to changing landscapes and shifting dynamics. 2021 was more of the same, with topics such as mandatory masking, vaccine mandates and return-to-office directives dominating debate in workplaces across the country.
Ascent Employment Law is happy to summarize the news and case law that caught our attention from the year that was:
British Columbia Rapid Transit Co (Re),  BCLRBD No 185, 2021 BCLRB 185 : This case is brand new, but represented an interesting development in the vaccine mandate debate. The grievance held that SkyTrain breached s. 54 of the BC Labour Relations Code regarding their mandatory vaccination policy. In the unionized context, s. 54 requires that if an employer introduces a policy that affects the terms, conditions or security of employment of a significant number of union members, the employer must give 60 days’ notice to approach the Union and devise an adjustment plan.
Following what appears to be a spirited debate, the Labour Relation Board sided with the Union, recognizing that a vaccine mandate will affect the terms of employment of Union members, and that the employer is required to consult on an adjustment plan.
BC Human Rights Tribunal Flooded with Complaints: It’s no secret, but the good people at the BC Human Rights Tribunal saw a tsunami of complaints since the start of the COVID-19 pandemic. According to one report, the BCHRT faced nearly three times its regular case load, with many complaints concerning vaccine mandates and mandatory masking. Processing times have spiked dramatically, and on November 8, 2021 the Tribunal placed an emergency pause on processing new applications to dismiss.
Delays at the Tribunal is a real issue to BC residents, and lasting, permanent solutions to procedural delays need to be urgently found.
Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156: Staying briefly with the Human Rights Tribunal, this decision caught my eye. The Complainant had a medical restriction to wearing a mask. When the store refused them entrance to the store, encouraging them to look at products online, the Complainant filed a discrimination complaint on the basis of disability. The BCHRT found that offering shoppers the option of shopping online was an appropriate accommodation to those medically exempt from wearing masks. In response to shopper’s desire to touch fabrics and try on garments for fit, the Tribunal found that Lululemon was not obligated to provide a perfect accommodation, but a reasonable one.
BC Announces 5-Days of Paid Sick Leave: On November 24, 2021, British Columbia announced amendments to the Employment Standards Act to provide 5-days of paid sick leave per year to eligible employees. Upon working for at least 90 days, employers must pay regular wages for sick days.
Perretta v. Rand A Technology Corporation, 2021 ONSC 2111: This case had a fascinating outcome, and applies to a common practice at termination. The employment contract provided for two weeks of severance pay in addition to employment standards. The employee was terminated, and the employer refused to pay the additional two-week portion if the employee didn’t sign a release of liability. Following trial, the Court found that the employer repudiated the contract and, as a result, awarded common law notice to the employee. This serves as a useful reminder that severance spelled out in contract is generally payable without a release.
McCallum v Saputo, 2021 MBCA 62: This case out of the Manitoba Court of Appeal provides an important reminder of established law: there is no right to procedural fairness in employment law and employers do not have a duty to conduct investigations into alleged misconduct prior to dismissing the employee for cause. Cause will be established or not on the evidence at trial, and the employer will assume that risk if they do not investigate. What continues to pickle me, however, is where procedural fairness ends and where the duty of good faith and fair dealing begins. Ascent faced this same question in Golob v. Fort St. John (City), 2021 BCSC 2192, summarized here.
Nelson v. Goodberry Restaurant Group Ltd., 2021 BCHRT 137: The Complainant is a non-binary, gender fluid, transgender person who uses they/them pronouns. They worked as a server in a restaurant. During their employment, their manager persistently referred to the Complainant with she/her pronouns and with gendered nicknames like “sweetheart”, “honey”, and “pinky”. They asked the manager to stop, and he did not. They asked management to intervene and were told to wait. On their final day of work, Jessie Nelson again tried to speak to their manager about this issue and the discussion grew heated. Four days later, they were fired.
This decision is significant for transgendered people. The use of female pronouns and gendered nicknames demeaned the Complainant and undermined their dignity at work. The response from the employer was not to restore a healthy work environment for the Complainant, but rather forced the employee to conclude they would have to address the issue themselves – at the eventual cost of their employment. The decision to terminate was part of the employer’s response to their complaints, and fell short of what is required by the Code.
Congratulations to Jessie Nelson and her counsel for showing courage, conviction and integrity in pursuing this case to a final resolution. This case moves forward the rights of transgendered people in British Columbia and in Canada.
Northern Regional Health Authority v. Horrocks, 2021 SCC 42: This case before the Supreme Court of Canada clarifies avenues available to unionized employees alleging workplace discrimination. In this decision of national importance, the Court found that “where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision-maker empowered by that legislation – generally, a labour arbitrator – is exclusive”. Only clear legislative intent will open the door to competing statutory tribunals.
McGuinty v. 1845035 Ontario Inc., 2020 ONCA 816: “Top 10 Lists” love to cite record breakers. In this decision, the Court of Appeal for Ontario upheld a decision to award an employee what might be a high-watermark for a constructive dismissal – $1,270,000 – or the value of the contract to the end of the term. As in any constructive dismissal, the Court considered the employee’s unique personal circumstances and noted that he did not return to work due to depression and anxiety caused by the employer’s conduct in constructively dismissing him.
Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70: In another record-setting case, the Nova Scotia Court of Appeal found that the Province discriminated against three individual complainants, Beth MacLean, Sheila Livingstone, and Joey Delaney, by keeping them in segregated institutional settings for many years without any medical or legal justification. Beth MacLean was awarded $300 000 in general damages for the suffering she endured, which now stands as the largest human rights general damages award in Canadian history. Her co-complainant Joey Delaney was awarded $200,000.
The case is remarkable for being the first court ruling in Canada regarding whether it is discriminatory to require persons with disabilities to live in institutional settings in order to receive necessary supports. It will justifiably be considered a hard-won victory for the many disability rights activists who have struggled for decades to end the practice of institutionalizing persons with disabilities. Tragically, Ms. MacLean passed away weeks before the decision was rendered by the Court.
Congratulations to Pink Larkin and the Complainants for this tremendous outcome. Special recognition to Pink Larkin for providing their invaluable services on a pro bono basis and providing material access to justice.