Law 21
June 28–July 4, 2011 Business in Vancouver Employment law
Trouble
Robert Smithson
lawsuit of the week
So your employee is an anarchist
Group files suit against medical companies for harmful injections Surrey resident Joel Lajeunesse has filed suit against several medical treatment companies and their directors for a cosmetic product that, when injected, allegedly caused more harm than good. According to an April 29 B.C. Supreme Court notice of civil claim, Pur Medical Corp., SkinRx Distribution Inc., Basis Medical Technologies Inc., Polymekon S.R.L., John McCahill, Allan Ward, Chantal Ward and Italy’s Universities Department and International Centers of Research on Innovative Materials are being held responsible for cosmetic injections that not only migrated into different areas of a patient’s body but also caused infections and inflammation. The suit, which was brought under the Class Proceedings Act, revolves around a product called Bio-alcamid, which is a “filler” injected under the skin to augment areas of tissue loss caused by aging, surgery or disease, court documents show. Bio-alcamid is purely a cosmetic product that, according to the suit, was marketed and advertised as appropriately tested, safe and non-toxic. In 2006, Lajeunesse, a bus driver, received Bio-alcamid injections to “fill in facial defects.” The injections allegedly caused cheek and jaw inflammation. Lajeunesse also claims the injections migrated into other areas of his face, and have caused pain and suffering. The suit further alleges that class members’ were not warned about the risks associated with Bio-alcamid. Lajeunesse is seeking an order to certify the claim a class proceeding, damages for medical and other expenses, or the revenue the defendants realized through Bio-alcamid sales. The plaintiff is also seeking damages or an order to return the monies the defendants obtained through deceptive acts or practices, an injunction and further damages. A statement of response had not been filed by press time.
Mississauga, ON and 1450–13401 108th Ave., Surrey Plaintiff: Alicia Haneine 490–1177 W. Hastings St., Vancouver Claim: $100,000 for a loan against 0822335, Ravindra, Canadian Real Estate Investment Group, Canreig, Canreig BC and Canreig Building Development Ltd.; and US$50,000 for a loan against Rivas, Ravindra, Canadian Real Estate Investment Group, Canreig, Canreig BC and Canreig Building Development Ltd. Defendant: Canamera Refrigerated Transport Inc. 837 Burdett Ave., Victoria Plaintiff: F.A.S. Trucking Ltd. dba F.A.S. Fuels 200–911 Yates St., Victoria Claim: $70,733 for goods, including fuel, sold to the plaintiff. Defendant: Khameron Chanasith 2277 Burrard St., Vancouver Plaintiff: Bosa Ventures (819) Inc. 406–6400 Roberts St., Burnaby Claim: $49,797 for debt related to a lease. Defendant: Connex See Services Inc. and District of Maple Ridge 120 E. Beaver Creek Rd., Richmond Hill, ON and 11995 Haney Pl., Maple Ridge Plaintiff: LTS Infrastructure Services Limited Partnership 1500–1055 W. Georgia St., Vancouver Claim: $46,087 for a fibreoptic cable and associated materials; and damages. Defendant: Sutton Group West Coast Realty and West Coast Realty and Harpal Singh Minhas aka Paul Minhas dba
Sutton Group West Coast Realty 206–1080 Mainland St., Vancouver and 205-2607 E. 49th Ave., Vancouver and 3050 Southwest Marine Dr., Vancouver Plaintiff: 0460763 B.C. Ltd. 1710–1177 W. Hastings St., Vancouver Claim: $36,196 for breach of the multiple listing contract, which noted that no commission would be paid in the event of certain purchasers buying the property, or, damages. Defendant: Euro-Pacific Developments (2006) Ltd. 4701 E. Hastings St., Burnaby Plaintiff: Dulai Roofing Ltd. Address unavailable Claim: $19,630 arising from a promissory note. Defendants: 942252 Alberta Ltd. and Openroad Auto Group Ltd. and Ventana Construction Corp. 1500–1055 W. Georgia St., Vancouver and 1300–777 Dunsmuir St., Vancouver Plaintiff: United Rentals of Canada, Inc. Bldg 2–115 Ardelt Ave., Kitchener, ON Claim: A declaration the plaintiff is entitled to a builder’s lien for $13,396 against 942252 for an equipment rental; an order; a declaration the plaintiff is entitled to a lien against the holdbacks against Openroad and Ventana. Defendants: Gurvinder Singh Dhillon and Balwinder Kaur Dhillon and Karamveer Singh Dhillon and Balvinder Malhi and Bellwether Excavating & Trucking Inc. and Sonia Kaur Gill and Amarjit Kaur Gill 11899 87th Ave., Surrey and Box 402, 6832 King
George Hwy., Surrey and 6640 125B St., Surrey and 7717 123A St., Surrey Plaintiff: Sukhdev Sidhu dba Sidhu Brothers Trucking 200–6330 Fraser St., Vancouver Claim: $10,000 for soil removal and gravel delivery; and a builder’s lien for $10,000. Defendants: Shane Gunn and Megan Gunn and Royal LePage 100 Mile Realty Ltd. and Brenda Hutton and Tanya Collinson Addresses unknown and Box 2038, 96 Cariboo Hwy. 97, 100 Mile House Plaintiff: Bonnie Gilchrist 275 South Cedar Ave., 100 Mile House Claim: Rescission of of a property purchase contract after the property was found to have rotting supports and other problems; and damages. Defendants: LiftX International Equipment Inc. dba LiftX Parts International and Dan Hildebrandt and David
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ou’ve all seen the video and still photos of the regrettable events in downtown Vancouver following the Canucks’ Stanley Cup loss. But what if, while watching the news, you spotted one of your employees participating in the mayhem? The first thing you should probably do, as an employer, is nothing. It is important not to react in a knee-jerk fashion to seeing an employee caught on video smashing a window, looting, setting fires, etc. Take your time, think about the situation, consider what you’ve seen and get some legal advice. And remember, in criminal matters, everyone is innocent until proven guilty (even if the video evidence is quite damning). It may be useful to start from the legal premise that what employees do on their own time is largely their own business, not their employer’s. If, however, their private activities negatively impact their employer’s business or reputation in some manner, then that’s a different matter. If my employee were caught on video lighting a car on fire while plainly wearing a t-shirt emblazoned with the name of my company, I might have a reason to be concerned. Or, if that employee is so well known in the community that viewers could be expected to connect him or her with my business, a similar concern might arise. Similarly, if the employment relationship is one in which observance of the law is a critical element, the employer may have good
reason for concern. As an example, if the employee works in a role counselling young offenders on living a crimefree life, his or her actions on the streets of Vancouver might be seen as undermining the employment relationship.
If the employee works in a role counselling young offenders on living a crime-free life, his or her actions on the streets of Vancouver might be seen as undermining the employment relationship In those instances a disciplinary response, possibly including termination for just cause (in which case no working notice or severance pay would be required), might be justified. This is a conclusion that should only be reached after seeking legal advice about the specific circumstances. Employers can, of course, terminate an employment relationship on a not-forcause basis as well (at least in a non-union setting). If the employee’s activities were so offensive that the employer simply wants to be rid of him or her, without worrying about whether just cause existed, the not-for-cause route might be the way to go. However, doing so will require compliance with the statutory (employment standards) and common law
requirements to provide working notice or severance pay in lieu. Though it may not feel right to give working notice or to pay such an employee a lump sum on his or her way out the door, the law requires employers do so unless true just cause for summary dismissal exists. Even if the employer does comply with its legal notice or severance pay obligations, that isn’t necessarily the end of the matter. Human rights legislation prohibits employers from refusing to employ (or continue to employ) a person who has been convicted of a criminal or summary offence that is unrelated to the employment. So, going down either a just cause or a not-for-cause termination path against an employee charged or convicted of a crime could result in a human rights complaint of discrimination. That is surely not a result that the employer will have been seeking. The ideal situation for the employer, if it makes a decision to terminate an employment relationship, is to have the employee go away without suing or filing administrative complaints (such as one alleging discrimination). Achieving that result will take patience and some expert advice for the employer to avoid creating legal problems for itself. • Robert Smithson is a labour and employment lawyer and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www. smithsonlaw.ca.
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