Labour, Employment and Human Rights

McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 – Supreme Court of Canada dismissed McCormick’s appeal from a BC Court of Appeal decision which found that McCormick, a partner at the respondent law firm, was not an employee pursuant to the Human Rights Code and that his mandatory retirement from the respondent firm was not discriminatory based upon age. The SCC noted that control over the appellant’s workplace conditions and remuneration lay with the collective partnership of the firm (of which McCormick was a member).

Ogden v Canadian Imperial Bank of Commerce, 2014 BCSC 285 – Supreme Court found that the respondent bank failed to establish just cause for the termination of a highly successful financial advisor. The court awarded aggravated damages, finding evidence that the bank’s reliance upon a flawed investigation and conduct during and subsequent to the termination (at which time the bank was aware the plaintiff was particularly vulnerable) caused the plaintiff to suffer quantifiable damages.

Rhebergen v Creston Veterinary Clinic Ltd, 2014 BCCA 97 – Court of Appeal upheld the decision of the trial judge, which upheld the enforceability of a non-competition clause. The clause, which imposed a financial penalty for opening a competing business, operated on a sliding scale with a $150,000 penalty imposed within one year of termination to a $90,000 penalty imposed within three years of termination.

Ostrow v. Abacus Management Corporation Mergers and Acquisitions, 2014 BCSC 938 – Supreme Court held that a dismissed employee was entitled to an increased notice period because of the inclusion of a non-competition provision in the employee’s employment contract. The termination clause in the contract provided for “reasonable notice” upon termination of employment.

Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168 – Court of Appeal agreed with the trial judge’s decision that an employee’s illegal conduct (soliciting drugs from a subordinate employee) constituted after-acquired cause for termination of employment.

Teck Coal Ltd. and USWA, Locals 9346 & 7884, [2013] BCCAAA 159 (Taylor), appeal denied BCLRB No B28/2014 – Arbitrator refused to grant the union an interim order suspending application of the employer’s mandatory random drug and alcohol drug test policy pending adjudication of the merits of the policy. The BC Labour Relations Board refused to grant an appeal of the arbitrator’s decision.

Unifor, Local 433 v Crown Packaging Ltd. (Giesbrecht Grievance), [2014 BCCAAA] No. 43 (Dorsey, QC) – Arbitrator refused to admit employer’s surreptitious video recordings in proceeding for a long-term employee who was terminated for fraudulently claiming sick leave and lying during the employer’s investigation. Decision maintains the separate approaches in this area of BC arbitrators from the rest of the country.

Sunrise Poultry Processors Ltd v U.F.C.W., Local 1518, BCLRB No. B154/2014 – The Labour Relations Board, upon reconsideration of an earlier decision, overturned the earlier decision and held that the issue of whether to anonymize grievors’ names in arbitration awards is a question of general law and therefore within the jurisdiction of the Court of Appeal.

Ma v. Dr. Iain G. M. Cleator and another, 2014 BCHRT 180 – Human Rights Tribunal issued a rare costs award in the amount of $5,000 against a complainant who the Tribunal found had impacted the integrity of the Tribunal’s processes by fabricating her complaint, lying under oath and fabricating evidence.

Kelly v. UBC (No. 4), 2013 BCHRT 302 – In addition to awarding the complainant wage loss of almost $400,000, the Human Rights Tribunal more than doubled its previous record for injury to dignity damages by awarding the Complainant $75,000.