BarTalk | December 2014 by The Canadian Bar Association, BC Branch

WORKPLACE INVESTIGATIONS | MEDICAL LEAVE | RESTRICTIVE COVENANTS

DECEMBER 2014 | bartalkonline.org

Off Duty Conduct and Workplace Consequences

PAGE 12

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DECEMBER 2014

VOLUME 26 / NUMBER 6

Contents

Departments

FROM THE PRESIDENT Re-Thinking the Future of Access to Justice by Alex A. Shorten

EXECUTIVE DIRECTOR Canoeing as a Metaphor for Life by Caroline Nevin

PRACTICE TALK Employment vs. Solo Practice by David J. Bilinsky

DAVE’S TECH TIPS

NOTHING OFFICIAL Eyes Wide Open by Tony Wilson

Sections

10 SECTION UPDATE Employment Law Immigration Law General Practice, Solo & Small Firm – Lower Mainland Labour Law 11 SECTION EVENT Nancy Ling on the Young Lawyers Okanagan Inaugral Event

Features

12 OFF DUTY CONDUCT AND WORKPLACE CONSEQUENCES by Eleni Kassaris and David Gibbons 13 EMPLOYEES ON EXTENDED MEDICAL LEAVE by Jonas McKay 14 TOP 10 BC WORKPLACE LAW CASES OF 2014 by Greg Heywood and Matthew Larsen 15 FAMILY STATUS DISCRIMINATION by David G. Wong and Saul Joseph 16 HOW TO DO A PROPER WORKPLACE INVESTIGATION by James D. Kondopulos 17 RESTRICTIVE COVENANTS by Monique Orieux and Lindsey Taylor

Guest 9

BE YOUR OWN LIFE COACH by Michael Hargraves

Inside This Issue The relationship between employers and employees has many facets (see the Top 10 B.C. workplace decisions rendered in 2014 by our courts, boards and tribunals as an example). Employment law continues to evolve as evidenced by the B.C. and Federal courts’ decisions relating to family status discrimination. Conducting proper workplace investigations is important if an organization wants to avoid the potential of significant damages, and drafting appropriate restrictive covenants is key to ensuring that an organization’s specific concerns are properly protected. Of course, a discussion of employment law without addressing work life balance would, in and of itself, seem unbalanced.

News and Events 2 Congratulations to the Top Five to Correctly Guess All Five BC Wineries 18 The BC Advantage is Here! CBA Warns of Possible Constitutional Shortcomings in Bill C-36 R. v. Nadli: Pre-trial Custody and Sentencing 19 2015 National Criminal Justice Conference: Smarter Charter Working Manual of Criminal Law Entrapment: Who’s Policing the Police? Follow the Money – Bitcoin 20 CBABC WLF NEWS CLEBC Update 21 BC Legislative Update Branch & Bar Calendar 2014 Mentoring Receptions at UBC and UVic 22 Tips from Courthouse Libraries BC 2015 CBABC Directory Georges A. Goyer, QC Memorial Award 23 24 25 26 27

Also In This Issue

LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES NEW MEMBERS DECEMBER 2014 / BARTALK 3

FROM THE PRESIDENT ALEX A. SHORTEN

Re-Thinking the Future of Access to Justice

Three months, three projects, three goals – A review of Q1

BRITISH COLUMBIA ACCESS TO JUSTICE COMMISSION

he CBABC joined a Committee of Stakeholders interested in setting up an Access to Justice Commission in BC along with the Law Society of BC, the Judiciary, the Ministry of Justice, the Legal Services Society, the Law Foundation and Access Pro Bono, to name just a few. The establishment of a Commission was recommended by the National Action Committee on Access to Justice in Civil and Family Matters Report. Meetings were held to discuss the process, desired outcomes, mandate, functions, values, scope, governance and funding for setting up the Commission. I expect that the finalization of the outcomes of this process will be shared with the legal community soon and subject to funding the Commission will be up and running soon.

CBA LEGAL FUTURES INITIATIVE

In August 2014, CBA released FUTURES – Transforming the Delivery of Legal Services in Canada. To quote from the Executive Summary in the report, “The key to establishing a viable, competitive, relevant and representative legal profession in Canada in the future is innovation – not just the development and adoption of technology-driven platforms and service delivery models, although they are critical, but also through new ideas about how lawyers are educated and trained, and how they are regulated to maintain professional standards while protecting the public.” The report makes 22 recommendations and I invite you to read the summary of the recommendations. I recently spoke with Fred Headon, National CBA Past President, who leads the Futures Initiative, and asked what’s next for the project. His reply was as ambitious as the report itself. Headon said, “Bringing to life the recommendations – be it through changes to the regulation of 4 BARTALK / DECEMBER 2014

the profession, new PD, new advocacy initiatives, new ways to support members – is our overarching focus as we try to help our members understand the sources of changing client expectations and to flourish in the new realities in which we work.” PROJECT RE-THINK

The CBA Board has approved this vital project, appointed a small diverse Steering Committee of board members, other qualified CBA members and staff, and approved the hiring of an outside consultant and overall budget. In other words, the work has begun. At our request, Anna Fung, QC of Vancouver has been appointed to the Steering Committee to represent BC’s interests. The scope of the review includes every aspect of how the CBA is structured, directed, governed, makes decisions, operates, provides value, communicates, manages relationships and defines accountability.

The Board has determined that “everything is on the table” and there is no such thing as a “sacred cow.” There will be three phases: understanding, concept visualization and strategic vision design. The team will start by gaining a meaningful understanding of who and what matters by interviewing members and non-members to determine needs. This will form the basis for the second phase where the CBA Board will conduct a workshop that will first co-create concepts and prototypes. These prototypes will then be built by a process of collaboratively working with stakeholders in a series of five regional workshops along with a virtual community. The outcomes of these workshops will form the basis for the Strategic Business Design and Activation phase. This phase will align organizational efforts with strategic choices and is intended to ensure optimal investments for long-term value creation, including the defining of a new governance model that supports the new mission and business model. I look forward to updating you on the progress of all three ambitious and important projects throughout the year.

Alex A. Shorten

president@cbabc.org

EXECUTIVE DIRECTOR CAROLINE NEVIN

Canoeing as a Metaphor for Life Lessons from the wilderness

his October, my partner and I fulfilled a 19-year-old dream to paddle together amidst full autumn colours in Ontario. We had canoed many summers in Algonquin and Killarney parks with our sons but always, by necessity, during school holidays. This time we were alone, paddling silently in chill air through landscapes with every possible variation of green, yellow, orange and red. All gadgets, including camera for the most part, were tucked away. Our cells were (blissfully) useless. We experienced everything with our eyes and other senses during the day, and talked about our interpretations and feelings by campfire each night. An explosion of static and falling stars all around us was our “homepage.” The only technologies that really counted were our headlamps and our MSR stove. Our small world consisted of one canoe,

one food barrel, two canoe packs and two slightly aging bodies that we took many new steps to keep in good survival shape. For the last four of our six days in the wilderness we saw only two sole paddlers the whole time, one at each end of the age spectrum – a keen young University of Windsor student from Kentucky (who we later learned survived a canoe dump in rapids), glad for a little social interaction at a portage, and a serene older “local” who headed quickly upriver with tidy, waterproof gear and a keen eye forward. I got the sense we were each glad to know there were others “out here” in the vast outdoors, but also glad it was big enough for all of us to feel content in our own personal wilderness. This was a trip of a lifetime, and while I deliberately didn’t think about my work while away, I realized when I came back that I had learned a lot that was applicable. If you have never canoed, don’t worry; the analogy to “real life”

is easy to understand. Here are the lessons I took away: 1. Know your environment. Use everything you can – maps, forecasts and daily/hourly gut feelings about what’s going on. Trust yourself more. Take in as much useful information as you can, and then sit and sift. You will choose the right path. 2. Be prepared to adapt to quick changes in that environment. Think about the most likely bad case scenarios and have the responses easily at-hand (in our case, that meant top-of-pack). If you have done this advance work, you will not be as easily thrown by new twists. 3. Equip yourself with the best and lightest supports you can afford. In canoeing, this primarily means good gear. In law, this means good PD, resources and low-maintenance high-value networks. And mentorship – both for older and younger participants.

4. Be smart about being in fighting shape. The world brings on new challenges every day. What worked when any of us was 20 is no longer true. The trick is being smart (not extreme) about setting yourself up to meet and beat those challenges. What’s truly tiring isn’t the volume of change – it’s the lack of preparation and built-up capacity to deal with it. Last word: The CBA is not a nameless, faceless entity. We are with you on every paddle stroke of your career in law, in every moment of joy sighting a gorgeous lake at the end of a long portage or a brand new colour of foliage along the way. And we are definitely with you when you encounter rough water. We are your ally and companion on life’s journey. If you are a member: fantastic to have you aboard! If you are reading this and haven’t yet joined: seriously, it’s time. With the new BC Advantage, you get free access to all 78 Branch and 41 National Sections/Forums included in CBABC membership, which is economical, high-end “gear” and a great way to stay in fighting shape for what’s coming next. Paddle on!

Caroline Nevin

cnevin@cbabc.org DECEMBER 2014 / BARTALK 5

practicetalk DAVID J. BILINSKY

Employment vs. Solo Practice

How do you know it is time to follow your dreams? r

Spread your wings and fly away Fly away far away... r

– Music and Lyrics by John Deacon, recorded by Queen.

ome lawyers are content to work within a firm – big or small – and be comforted by the presence of other lawyers, paralegals, secretaries and accounting staff – to know that they are part of a bigger organization, have the support of the group and to take comfort from these surroundings. In others there burns the need, the desire and the allure of one day spreading their wings, soaring and establishing their own nest. But when do you know when it is time? What preparations should be done before taking that giant leap into the unknown? How can you best prepare yourself to fly solo? Here is a selection of things to ask yourself: Are you a motivated self-starter with a can-do attitude? Are you comfortable making decisions on your own and wishing to build your own brand and get that message out to the broader market? Or are you more comfortable having job security and little financial risk? Have you been thinking – or even dreaming about – going solo for some time, or is this more of a reaction to a current event or situation? How much of how you perceive yourself is related to being part of a larger organization? Which rings louder for you: being called Jane Smith of Colossus Law Firm, or Jane Smith Barrister & Solicitor? Are you prepared to look after all aspects of running your practice: from fixing the photocopier when it jams to paying salaries, the rent and CRA in full and on time?

6 BARTALK / DECEMBER 2014

you enjoy the idea of being an entrepreneur: of getting out there and marketing yourself, of working crazy hours when the work comes in and cancelling family dinners and such

Are you a motivated self-starter with a can-do attitude? when sudden deadlines pop up? you have enough savings accumulated and/or a life partner who can finance your living expenses up until you have a positive and healthy cash flow? Who is in your network today? Do you have a spouse, friends, colleagues and clients that will support your move to solo practice? Do you have a LinkedIn presence, a Facebook page and other social media accounts that will be used to launch Do

your marketing? Are you comfortable walking into a room of strangers and passing out business cards and schmoozing? Have you planned out the new practice? Have you thought about, and written, a business plan? Are you good at keeping costs low and looking for ways of saving money? In the early years, this is an essential skill while you build your practice and cash flow. Are you prepared to keep trying new things, new approaches and new technology? As an entrepreneur you have to be nimble and quick on your feet – and that means moving and changing things up to see what can work better, always seeking efficiencies and effectiveness. Only you, being retrospective and deeply honest with yourself, will know when you have reached the point when it is time to lift your head, take a deep breath and spread your wings and fly... far far away. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips What online resources are available if you want to launch your own practice? Certainly you need a good business plan that addresses how you will finance your business, how you will manage it and how you will market it, as well as outline the technology that you will use to run everything. Accordingly, here is a selection of sites that will help you craft your business plan and go solo:

LIVEPLAN (liveplan.com) There are any number of websites that have resources on starting a business, but liveplan is an interactive one that assists you in creating your business plan. It also has 500 examples that you can draw on (every lawyer likes a precedent, right?)

LAW SOCIETY OF BC (lawsociety.bc.ca/page. cfm?cid=17&t=Practice-Support) Under the practice resources section, we have a number of resources on starting and running a law practice, including a law firm budget spreadsheet precedent as well as resources on drafting a business plan.

JAY FOONBERG (foonberglaw.com) Jay Foonberg is a lawyer who has probably helped more lawyers start up a practice than anyone else in history. His seminal books How to Start and Build a Law Practice and How to Get and Keep Good Clients have been well-acknowledged and well-read.

CBA PRACTICE LINK (cba.org/CBA/PracticeLink/201401-yl/rogue.aspx) Michael McCubbin is featured in an article on the CBA’s PracticeLink resource pages entitled “Going Rogue Year One: A New Call Who Started His Own Law Firm.” This is just one example of how the CBA continues to build PracticeLink, which is a great resource for Canadian lawyers. ABA BAR ASSOCIATION (americanbar.org/publications/ law_practice_magazine/2011/ july_august/10_steps_to_prepare_yourself_for_a_graceful_ launch.html) John Snyder wrote an interesting article for the American Bar Association (ABA) entitled “10 Steps to Prepare Yourself for a Graceful Launch.” It is an example of the deep resources available on the ABA’s practice websites: Law Practice Magazine and Law Practice Today. Their books and other resources can be found on the Law Practice Division’s website at americanbar.org/groups/law_practice.html.

MYSHINGLE.COM (myshingle.com/resources/ startalawfirm) MyShingle.com is another website with a tremendous collection of resources for someone looking to start their own firm. ENTREPRENEUR.COM (entrepreneur.com) Law school didn’t teach you how to be an entrepreneur or how to run a business. You need to expand your informational intake from just law and start changing your thinking. Fortunately, Entrepreneur magazine and their website is a great resource on how to start thinking differently. © 2014 David J. Bilinsky

DECEMBER 2014 / BARTALK 7

nothingofficial TONY WILSON

Eyes Wide Open

A few survival tips for students and young lawyers

ne of the things I like to do in that “other” job I have is to meet young articling students for their “Bencher Interview.” I see around 30 students a year from a variety of law firms. I try to break the ice and tell them what I’d once been told about why we do Bencher interviews. Apparently, they were to elicit an answer to Joe McCarthy’s infamous question: “Are you now, or have you ever been a member of the communist party.” The “Red Scare” reference doesn’t get the laughs I might have expected, but then again, I grew up in the cold war before “communism” became another word for “capitalism.” I talk about what the Law Society does as the regulator of the profession, the importance of protecting the public interest, credentials and discipline, hearing panels, ethics, the importance of civility and integrity, and maintaining an impeccable reputation. And of course, whether they’re having more fun than a barrel of monkeys. The most interesting question I get asked is: “How do I get from ‘here’ (articling) to ‘there’ (making a reasonable living practising law after articling)?” So here are a few random thoughts, in no particular order: 1. There are good years for getting kept on and bad ones, and it usually has to do with the market for lawyers at the time. The graduating class one and two years ahead of mine had “crop failure” because of the recession of the early 80s, but everyone inevitably got jobs. If the job market is bad, don’t give up. Don’t lose heart. It’ll pick up. 2. There’s no doubt that long hours of hard work is essential. That (like it or not) was the Faustian bargain we made with our future selves when we decided to become lawyers. Is work life balance important? Yes, but it’s

8 BARTALK / DECEMBER 2014

way more important when you have kids. You never get their “growing up” years back. Ever. 3. Excellent communication skills are essential. “Upspeak,” “Like,” “You-know” and dropping your “g’s” are career limiting moves. Follow Grammarly.com on Facebook for humorous reminders about grammar and diction. 4. You may have to inevitably practice in one of BC’s faster growing communities, rather than downtown Vancouver. Langley, Surrey, Abbotsford, Maple Ridge or Dawson Creek. There are many BC communities that need lawyers, and you might get more court time in “The Burbs” than you ever would in downtown Vancouver. So go where the jobs are. Besides, the housing may be cheaper and the commute easier than in Vancouver. 5. Develop a niche area. I was lucky. My friend and mentor of more than 25 years, Len Polsky,

hired me to be his “junior” in 1988. I worked with him for 10 years at two different firms, and learned everything I could from him about franchise law. So if you can find a mentor and a niche, like I did, you won the lottery. But there are still niches to be found. Rebeka Breder, in my office, is a leading practitioner of Animal Law. Bonnie Czegledi, in Toronto, is a worldrenowned art lawyer with a practice that includes returning art stolen by the Nazi’s to the families of the original owners. She turned her passion into a legal practice. Maybe you can too. 6. Try to be indispensable. If you’re not necessarily missed, you’re not necessarily needed. 7. Never turn down a speaking or writing opportunity. In fact, seek them out. Make sure your articles go online and are crosslinked, shared, re-posted and tweeted up the ying-yang to give you improved SEO. Like they say, the best place to hide a dead body is on the second page of Google. So be on the first page. 8. Finally, try to develop your own client base. It may take you time, but a “book of business” gives you the freedom to stay at your firm, and the freedom to leave it. The views expressed herein are strictly those of Tony Wilson’s spam and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

guest MICHAEL HARGRAVES

Be Your Own Life Coach

Finding a path to wellness and balance

he occupational hazards of the legal profession are notorious. They come up regularly in trade periodicals, including BarTalk (see the October 2014 issue, for example), and for the younger generations of lawyers, at least, they have been pointed out since day one of the Professional Legal Training Course. Lawyers are at increased risk of substance abuse, relationship problems and various health issues resulting from stress, poor diet and sedentary lifestyle. The phrase “work-life balance” has become so ubiquitous in recent years that it is in danger of becoming a laughable cliché, especially in light of the heavy demands of legal work and the pernicious undercurrent of machismo that still permeates much of the profession. It may be tempting to dismiss worklife balance as something that doesn’t matter. Make no mistake. It matters. What does “work-life balance” mean? You might as well ask what “reasonable” means. The answer varies according to context. That said, some common denominators can be identified. Basic components of human wellness include physical activity, healthy diet, social connection and opportunities for self-fulfillment, which might also be termed “interests.” Being a lawyer typically provides satisfaction of basic material needs,

and it may address some of these other factors to some degree, but it’s indifferent, if not detrimental, to others. High stress and extraordinarily long hours are sometimes necessary for lawyers, and go with the territory to some extent, but at what point do they become unacceptable? When you’re looking back from your deathbed, will you be wishing you had put in more overtime at work? The lawyer who persistently subordinates one or more basic factors of wellness to the demands of work will pay the price, sooner or later.

When you’re looking back from your deathbed, will you be wishing you had put in more overtime at work? Breaking a cycle of unhealthy habits can seem overwhelming, especially if you find yourself falling short on several elements of wellness. Where do you start? No single element, in isolation, will render a person healthy, but if all or some of them are lacking, addressing one of them may help

develop the momentum needed to move forward with the rest of them in turn. That’s where the thesis of this article comes in: be your own life coach. Those very same “Type A” traits (driven, goal oriented, perfectionist, competitive) that help you succeed in your work, but may also lead to imbalance and ill-health, can be turned to your own advantage. Try offering yourself the same level of service you offer your most valued clients. Are you any less worthy? Your first job as life coach is to make a commitment to yourself, “the client,” that you will be 100% supportive of efforts to restore balance and wellness, one step at a time, no matter how long it takes. Learning to view your situation from a different perspective, as an advocate for your own health, may help you to see your habits more objectively, and see excuses for what they are. This does not mean you will have all the answers. Quite the opposite. Having all the answers is not the job of the life coach. The life coach’s job is to push you beyond inertia, help you set goals, and encourage you to get whatever outside help you may need. If you make the commitment to being an advocate for your own wellness, no less than you are an advocate for your clients, how can you lose? Michael Hargraves is a partner at Stewart McDannold Stuart in Victoria, where he practises local government law. DECEMBER 2014 / BARTALK 9

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Employment Law Meeting in Review: September 22, 2014 Speakers: Louis J. Zivot, McMillan LLP, Kaitlyn Meyer, McMillan LLP and Tyson Gratton, McMillan LLP Topic: Just Cause – Recent Developments in Case Law

Immigration Law Meeting in Review: September 23, 2014 Speaker: Matthew Wong, Senior Development Officer, Services Canada Topic: Overhaul of the Temporary Foreign Worker Program

Employment Law September 22, 2014, the uOn Employment Law Section hosted their first Section meeting of the year. Guest Speakers Louis Zivot, Kaitlyn Meyer and Tyson Gratton, all of McMillan LLP’s Vancouver office, presented an update on jurisprudence involving “just cause” allegations. This presentation canvassed Mr. Zivot and Ms. Meyer’s recent victory in the Staley v Squirrel trial/appeal, a case relating to employee relocation. Other topics discussed included social media and its effect on just cause as well as recent cases on the topics of willful disobedience and insubordination. Other noteworthy cases discussed included Grewal v Khalsa Credit Union and R v Cole. Meeting minutes and the webinar recording are available online.

Immigration Law On June 20, 2014, the Tem-

General Practice, Solo & Small Firm Lower Mainland Meeting in Review: October 9, 2014 Speaker: Gradin D. Tyler, Mathews Dinsdale & Clark LLP Topic: Employment Law 101

Labour Law Meeting in Review: October 29, 2014 Speaker: Michael Wagner, Roper Greyell LLP and Stephanie Drake, Victory Square Law Office LLP Topic: Updated on Family Status Discrimination

10 BARTALK / DECEMBER 2014

uporary Foreign Worker Pro-

gram (TFWP) was overhauled in three key areas. Matthew Wong reviewed these three key areas on the September 23rd Immigration Law Section meeting. Firstly, reorganizing the TFWP: the Labour Market Impact Assessments programs (LMIA) will be divided into LMIA-exempt International Mobility Program and LMIArequired programs. Secondly, restricting access to the TFWP: the program will no longer be administered according to National Occupational Classifications. Positions where the offered wage on the LMIA application is below the provincial median wage will be considered Low-Wage, and vice versa. Lastly, stronger

enforcement: one in four employers using TFWs will be inspected each year. The recording of this Section meeting, along with the minutes, are available for CBA members to review online.

General Practice, Solo & Small Firm Lower Mainland The General Practice, Solo &

uSmall Firm – Lower Main-

land Section has been running a series of “Law 101” sessions. This year alone, the Section has had presentations on Environmental Law, Immigration Law, Securing Fees and Employment Law. The purpose of these meetings is to facilitate networking for solo and small firm practitioners. On October 9, 2014, members of the Section met for the “Employment Law 101” meeting presented by Gardin D. Tyler. His presentation included an overview on Termination of Employment, Reasonable Notice, Just Cause and Constructive Dismissal. Regardless of what area of law you practise, meetings such as these are useful and informative and provide a sense of community for solo and small firm practitioners who may sometimes feel isolated. Meeting minutes and recording can be found online. To request a possible topic please contact the Section Executive.

Labour Law On October 29, 2014, Mi-

uchael Wagner and Stephanie

Drake reviewed and discussed the recent trends and implications of what is arguably the least understood ground of protection under human rights legislation –

family status. The term “family status” is not defined in the BC Human Rights Code, but encompasses one’s status as parent or child, among other relationships. Michael and Stephanie contrasted the “employer-friendly” test for discrimination on the basis of family status that continues to apply in BC with two recent decisions from the Federal Court of Appeal that set a different threshold for engaging human rights protections on this ground. Also discussed was an employer’s obligation to accommodate an employee’s eldercare obligations. In BC these obligations are, at least for now, also subject to the more restrictive “employerfriendly” test. Given that other provincial jurisdictions, and now

the Federal Court of Appeal, have declined to apply the more restrictive test currently in place in BC, it is likely only a matter of time before the test in BC is revisited. The meeting minutes and recording are available for CBA members to view online. UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Section’s meetings by email. Enjoy the benefits of membership, and enroll in your included Section today. CBA members are reminded to keep their profile up to date with the Branch to ensure they receive notices.

SECTION EVENT

Nancy Ling on the

YOUNG LAWYERS OKANAGAN Inaugural Event

With the goal of fostering relationships and getting outside for some fresh air and fun, the Young Lawyers Okanagan Section is taking to the Big White Ski Resort. The inaugural event last year was a great success and well-attended. This year’s event will be held the weekend of January 31, 2015. Much of the day is spent together on the chair lifts, at lunch, après-ski and relaxing, and some is spent in smaller groups, with new friendships growing over the green circle runs or the double black diamonds, as the case may be. Come spend one or two nights at the Inn at Big White with us. The evenings are just as fun-filled, with dinner in the Big White Village, an evening out at Big White’s nightlife venues, and walking (or sliding) back to our hillside accommodations. Join us for a great weekend out of the office!

DECEMBER 2014 / BARTALK 11

features ELENI KASSARIS AND DAVID GIBBONS

Off Duty Conduct and Workplace Consequences Employment in the age of social media

he realization that an employee’s conduct outside of the workplace can be cause for discipline and even termination has recently come to the forefront in the wake of the CBC’s high profile public firing of Jian Ghomeshi. With greater integration of technology and social media into everyday life, the potential of having such conduct made public and result in disciplinary action in the workplace is only increasing. In an internal memo distributed to staff soon after the termination of Mr. Ghomeshi’s employment, the CBC explained that it decided to terminate Mr. Ghomeshi’s employment after viewing “graphic evidence that Jian had caused physical injury to a woman.”1 This came after Mr. Ghomeshi advised the CBC that the Toronto Star was investigating allegations that he had engaged in non-consensual “rough sex” with a former girlfriend and following an internal CBC investigation which concluded that “there were no complaints of this nature about Jian’s behaviour in the workplace.”2 Numerous other allegations relating to Mr. Ghomeshi, some involving alleged misconduct at the workplace, have been made public since the CBC’s termination of his employment, and many of them via social media. However, his alleged misconduct outside of the office was the sole cause for dismissal

12 BARTALK / DECEMBER 2014

identified by the CBC at the time of his termination. In its internal memo, the CBC noted that this conduct was fundamentally unacceptable, a breach of the CBC’s employee conduct standards, and “likely to bring the reputation of his fellow employees and [the] CBC into disrepute.”3 No matter how the Ghomeshi matter unfolds, it is well-established that employers can be justified in disciplining and dismissing employees for employee misconduct occurring entirely outside of the workplace.4 In determining whether such conduct constitutes sufficient cause for dismissal, the court will consider the seriousness of the misconduct, whether it adversely affects the employment relationship, whether the activity was repeated or isolated, and whether the activity was done with the intention of injuring the company.5 Such conduct may also be just cause for termination if it is a breach of legitimate company rules or policies.6 Off duty misconduct resulting in workplace disciplinary action is now increasingly taking place on social media. Facebook, Twitter and various other platforms are becoming the primary vehicles for this activity, and it makes little difference whether users maintain public, private or limited access profiles on

these services.7 The courts are concerned with the harm to an employer’s reputation that results from online misconduct, and all employee social media posts that could potentially harm their employer’s reputation now seem to bear scrutiny. Employers have been found to be justified in disciplining and even terminating employees in a variety of situations involving employee use of social media, including where employees: vent about workplace frustrations and make inappropriate comments about their supervisors and co-workers;8 post racist or hate-filled commentary; and disclose confidential information.9 The CBC’s termination of Jian Ghomeshi’s employment has brought to the forefront the realization that things employees do away from the workplace can have serious consequences. Both employers and employees need to be aware of the dangers and consequences associated with off duty conduct. Employers should develop or update their policies to set standards of conduct, including conduct relating to social media use, communicate these policies to their employees, and enforce them in a consistent manner. Employees for their part should ensure that they are fully informed of any social media policies and standards of conduct instituted at their workplace, and otherwise be cognizant of their off duty conduct, including what they are posting online. Eleni Kassaris and David Gibbons, Blake, Cassels & Graydon LLP. Click on footnote number above for more information. 1-9

JONAS MCKAY

Employees on Extended Medical Leave Disability management concepts

n employee leaves work in tears. A doctor’s note follows, stating the employee will be absent two weeks for medical reasons. Two weeks becomes a month, a month becomes two, and a year later the employee is still on leave. The employer now faces a situation that began as a short-term medical leave, and has become a protracted employee absence fraught with legal liability. Employees on extended leaves present legally complicated situations, and employers should consider the following approaches to disability management. OBTAIN INFORMATION AND ASSESS FITNESS FOR WORK

An important step in disability management is to understand the employee’s abilities and restrictions as a result of the illness, and understand whether the employee requires any accommodations to return to work. Employers don’t need the employee’s specific diagnosis. However, it is important to understand if the employee’s illness is temporary or permanent, how the illness affects the employee’s ability to do the job and whether the illness presents any safety concerns. An employer’s right to an employee’s medical information is a balance of the employee’s privacy rights and the employer’s right to manage its workplace. Employers

can request employees on medical leave provide information relating to their abilities and restrictions, the anticipated length of the disability and what accommodations the employee may require to return to work. EXPLORE ACCOMMODATION

Under human rights legislation, an employer is required to accommodate an employee’s disability to the point of undue hardship. Unless medical and other evidence indicates the employee cannot return to work for the foreseeable future, the employer should look to develop an accommodation plan for an employee on medical leave. If the employee on leave can return to work with some accommodation, the employer, employee and medical professionals should work together to design a return to work plan that meets the needs of all parties. It may be that medical and other evidence indicates that the employee is not able to work for the foreseeable future, either in the preleave position or an accommodated role. In this scenario, the employer may begin to consider ending the employment relationship on the basis of non-culpable absenteeism or frustration of contract.

WARN OF PENDING DECISION

Ending the employment of an employee on medical leave has profound effects on that individual. Employers should ensure they have the best available information before making this difficult decision. An employer considering a frustration of contract or a non-culpable absenteeism dismissal should provide the employee with a warning of the pending decision, and an opportunity to provide further relevant medical information prior to the end of employment. The employee may have relevant medical information that has not been provided to the employer, and a warning can revive dialogue between the employee, employer and their medical professionals to determine whether the employee is able to return to work. If there is no new information and medical evidence suggests the employee is not able to return to work, a warning gives employees an opportunity to preserve their dignity and be heard in relation to the important decision of their continued employment, and potentially an opportunity to prepare for an ultimate termination. Employers should obtain information to assess the fitness for work of employees on medical leave, develop an accommodation plan wherever possible and consider ending employment only after all the evidence suggests the employee is not likely to return to work in the foreseeable future. Jonas McKay is a lawyer at Hamilton Howell Bain & Gould. He practises employment law for both employers and employees. DECEMBER 2014 / BARTALK 13

features GREG HEYWOOD AND MATTHEW LARSEN

Top 10 BC Workplace Law Cases of 2014

Labour, employment and human rights

cCormick 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

14 BARTALK / DECEMBER 2014

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. Greg Heywood and Matthew Larsen practice workplace law at Roper Greyell, a leading workplace law firm.

DAVID G. WONG AND SAUL JOSEPH

Family Status Discrimination The challenges in balancing employment and childcare obligations

t is settled law that family status discrimination cannot be limited to the status of being a parent per se, as that would fail to address the consequences of workplace decisions that negatively affect employees’ family obligations. Similarly, the concept cannot be so open-ended that any conflict between personal and professional responsibilities arises in discrimination, as that would result in serious workplace disruptions. However, contained within these broad boundaries, two lines of authority have developed that attempt to balance these competing interests in how they define what constitutes family status discrimination and what responsibilities are placed on employees and employers. BRITISH COLUMBIA

In British Columbia, the law was largely settled by the 2004 Court of Appeal decision in Health Sciences Association of BC v. Campbell River and North Island Transition Society (“Campbell River”). The Court in Campbell River took a restrictive approach, holding that family status discrimination occurs where “… a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.” The Campbell River test is noticeably more restrictive than the test for prima facie discrimination for other

protected grounds, where it is only necessary to show that the individual was a member of a protected group, who experienced adverse treatment, and that there was a nexus between the ground and adverse treatment. While Campbell River has been applied within British Columbia, federally, the Campbell River approach has been resisted as being too stringent and has been criticized for creating a hierarchy of human rights. FEDERAL

On May 2, 2014, the Federal Court of Appeal released its decision of Johnstone v. Canada (Border Services) (“Johnstone”). Mrs. Johnstone and her husband were both employed by the Canadian Border Services Association (the “CBSA”). The CBSA used a rotating shift schedule for its full-time employees. Mrs. Johnstone found that the shift pattern made it difficult to secure reliable childcare and she requested a fixed full-time schedule. The CBSA told her that they would provide her with a fixed schedule, but that she would have to reduce her hours from full-time to part-time. On review, the Court in Johnstone developed a four-part threshold test for family status discrimination: “(i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue

engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.” The Court found that the circumstances of Mrs. Johnstone satisfied this test. SUMMARY

The Court in Johnstone expressed its opinion that Campbell River is too strict and emphasized that the test for family status discrimination should be substantially similar to the test for prima facie discrimination for other protected grounds. Despite this criticism, the Federal Court of Appeal formulated a stricter test for family status discrimination than exists for other protected grounds and, in doing so, appears to have embraced some of the principles from Campbell River. Time will tell how these two lines of authority develop – whether together to one unified approach or apart as two different approaches. David G. Wong (pictured above) is a lawyer in the Labour, Employment and Human Rights group of Fasken Martineau. David provides advice and counsel to unionized and non-unionized employers related to their employment related issues. Saul Joseph is an articling student at Fasken Martineau. DECEMBER 2014 / BARTALK 15

feature JAMES D. KONDOPULOS

How to Do a Proper Workplace Investigation

A flawed investigation is a recipe for trouble

flawed investigation of alleged employee misconduct is a recipe for trouble and can in certain circumstances result in a significant damages award against an employer. This is illustrated in a number of cases, but perhaps none better than Elgert v. Home Hardware Stores Limited, 2011 ABCA 112, a case in which the employer learned its lesson the hard way. In the wake of a shoddy workplace investigation, the employer was sued by one of its former employees, Daniel Elgert, and in a stunning award, was found by a jury to be liable for two years’ pay in lieu of notice, $200,000 aggravated damages, $300,000 punitive damages, interest and costs. This award was reduced on appeal but still remained substantial. Elgert was a supervisor at the employer’s distribution centre. He supervised an employee named Christa Bernier. Bernier was the daughter of Elgert’s boss but also a problem employee with job performance issues. When Elgert took her to task, she reacted badly. In the presence of a couple of co-workers, she said she would get even with Elgert and make him pay. Shortly afterwards, Bernier told her father about an incident that had allegedly taken place. She said that Elgert had followed her up some stairs into a storage room, bumped her against a table and put his legs between hers. Bernier said

16 BARTALK / DECEMBER 2014

she yelled and left after another employee entered the room. When Bernier’s story came to management’s attention, an investigator – who was untrained and inexperienced and a long-time friend of Bernier’s father – was assigned to conduct an investigation. He failed to examine the wider relationship between Bernier and Elgert and did not consider motive and the possibility of fabrication. To make matters worse, the investigator dealt with Elgert in an accusatory way. Notwithstanding the fact that he had worked at the distribution centre for nearly 17 years, Elgert was suspended from employment, escorted out of the building and not allowed to collect his belongings. He never returned to work. He was dismissed from employment for just cause. Elgert sued for wrongful dismissal and defamation. The majority of the Court of Appeal made a useful statement to guide employers dealing with allegations of sexual harassment and other employee misconduct: “There is no specific standard of investigation that employers must follow; what is required will vary depending on the facts surrounding the employer, its policies, sophistication, experience and the workplace…

…[H]ow the employer reacts is subject to judicial scrutiny. Its responsibilities do not give it licence to conduct an inept or unfair investigation or behave in malicious, vindictive, or outrageous ways.” Cases like Elgert make it clear that an employer must conduct a workplace investigation which is appropriate and fair in all of the circumstances. Here are some basic pointers to avoid running into difficulties: 1. Use an impartial investigator. Elgert’s case was prejudged by the investigator and his discharge from employment already a fait accompli. 2. Apprise the employee under investigation of all allegations against him or her. This is a matter of fairness. It gives the employee the opportunity to hear the allegations and then tell his or her story. 3. Gather and weigh all relevant evidence, even if you have to interview multiple witnesses, and be sure to meet with the witnesses from both sides. 4. Make the necessary credibility judgments, and be alive to the inherent dangers of hearsay evidence, motive and the possibility of fabrication. 5. Keep detailed, accurate records of interviews. Consider asking the individual being interviewed to review and sign any statement that he or she has provided. 6. Perhaps most importantly, seriously consider hiring a skilled, independent workplace investigator. James D. Kondopulos is a partner at Roper Greyell LLP. He advises employers in employment, labour relations and human rights matters.

feature MONIQUE ORIEUX AND LINDSEY TAYLOR

Ask yourself, “Who does the employee have the relationship with?” These are the clients that should be protected.

Restrictive Covenants

Top five mistakes to avoid

UNREALISTIC LENGTH OF TIME. Though we instinct-

ively seek to protect the business for as long as possible, this invariably leads to restrictive covenants that are too long. Employers must be realistic in terms of the length of time former employees must be restrained in their trade. Have a frank discussion about how long it will take to lock down the business or to secure the client relationships. Consider the length of sales cycles, and similar business practices. You must be proactive and realistic, and should not sit back and let the restrictive covenant do the heavy living. 2. THE GLOBAL RESTRICTION. Despite the rapid growth of online businesses, tele/video-conferencing capabilities and business that operate on the global stage, a restrictive covenant that does not contain a defined geographic scope without any limitations will rarely be upheld. To limit the risk that a restrictive covenant will be overly broad, determine if a worldwide restriction is necessary to protect a legitimate proprietary interest. If it is, consider narrowing the restraint by identifying the competitors that the employee cannot work for during the term of the restrictive covenant. 3. ABSENCE OF A “JANITOR CLAUSE.” Non-competition clauses are often found to be unenforceable because the employer seeks

to prevent the employee from working in any capacity during the term of the restrictive covenant. If an employee can take a job as a janitor or mail room clerk, for example, and cause no harm to the employer, but the restrictive covenant prohibits this, then there is a risk the clause may be overbroad. Therefore, seek to tie the activities the employee is restricted from engaging in, post-employment, to the activities the employee engaged in during their employment. 4. PROTECTING THE FUTURE AND THE PAST. If your non-solicitation clause purports to prevent your former employee from soliciting “all clients,” chances are that it is overbroad. It is the rare case when an employee, in fact, works

Restrictive covenants are not one-size-fits-all. with all of your clients. Be realistic about where and with which clients your company is vulnerable. Avoid applying a restriction to “prospective” or “former” clients. Consider restricting only those clients that the employee has worked with in a defined period, such as the year prior to termination.

5. CHOOSING THE WRONG TOOL FROM YOUR TOOLBOX. A noncompetition clause can preclude your former employee from accepting employment with one of your competitors and/or starting a new, competing business. But a non-competition clause is also the most restrictive in terms of restricting former employees from engaging in their trade. If your real proprietary interest is in protecting

your clients, your concern may not be that your former employee works for your competitor, but rather what that employee does for your competitor. Most often a non-solicitation clause preventing solicitation of clients is sufficient. A final word: While a client may seek a template employment agreement, restrictive covenants are not one-size-fits-all. Ask yourself, “what are they really afraid of?” to determine the type of restrictive covenant to use, the scope of restraint and to avoid some of these common mistakes. Monique Orieux and Lindsey Taylor are associates at Fasken Martineau. They represent and advise employers in employment, labour and human rights matters. DECEMBER 2014 / BARTALK 17

news&events CBA NATIONAL NEWS

R. v. Nadli: Pre-Trial Custody and Sentencing

UNLIMITED ACCESS. UNLIMITED SAVINGS. UNLIMITED RESOURCES. The 2014/2015 CBABC membership year has begun and with your CBABC Membership you receive unlimited access to 78 BC Sections and 41 National Sections. As a BC member: Register online for any Section meeting/event without enrolling in Sections. Access online Section resources such as minutes, legislative updates, news items and discussion board. Enroll in your preferred Sections to receive email notifications of meetings, news and updates.

JOIN TODAY!

CBABC.ORG/BCADVANTAGE CBA NATIONAL NEWS

CBA Warns of Possible Constitutional Shortcomings in Bill C-36 The Canadian Bar Association (CBA) cautions that Bill C-36, Protection of Communities and Exploited Persons Act, introduced by the federal government in response to the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford, may fall short on constitutional grounds. “Bill C-36 introduces a number of measures which on their face appear to comply with the central aspects of the Bedford decision,” says Ian Carter, Executive member of the CBA’s National Criminal Justice Section. “However, the 18 BARTALK / DECEMBER 2014

practical application of some of these provisions undermines the spirit of the Bedford decision.” The CBA submission to the Senate Standing Committee on Legal and Constitutional Affairs focuses on the constitutionality of new provisions, introduced to replace portions that the Supreme Court had declared unconstitutional in the Bedford decision. The particular sections scrutinized by the CBA include keeping a common bawdy-house, communication for the purpose of engaging in prostitution, and living off the avails of prostitution.

Caroline Wazonek, Chair of the CBA’s Northwest Territories Criminal Law Section, takes a look at R. v. Nadli, in which the Supreme Court of the Northwest Territories became the first superior court in Canada to declare the Truth in Sentencing Act amendments to the Criminal Code unconstitutional. Read more online

The federal legislation was introduced in June to comply with the one-year time limit called for by the Supreme Court. In its submission, the CBA notes that a key consideration for the Supreme Court of Canada was whether the legislation makes working conditions for prostitutes more dangerous, and so violates section 7 of the Charter. Prostitutes are still engaged in a legal activity – selling sex for money – and section 7 guarantees life and liberty of the individual for all. The CBA also states that limits on communication may contravene freedom of expression guarantees in the Charter. “We believe the Bill potentially imperils prostitutes going forward by restricting their ability to protect themselves in their inherently risky, but legal activities,” notes Ian Carter. The Canadian Bar Association is dedicated to supporting the rule of law, improvements in the law and the administration of justice. Some 37,000 lawyers, law teachers and law students from across Canada are members.

CBA NATIONAL NEWS — SAVE THE DATE

2015 National Criminal Justice Conference: Smarter Charter DATE: APRIL 18, 2015 LOCATION: VANCOUVER, BC In an era in which Charter of Rights and Freedoms is almost ever present in the criminal trial system, how should Crown and defence counsel litigate pre-trial motions that may be critical to the verdict? When should a Charter argument be brought and what is the best response? Which witnesses should be called on a Charter motion? Should the accused testify? How best do counsel focus their submissions? What is the recent Supreme Court jurisprudence and where are we going next? Join us in Vancouver as a very experienced panel of jurists and counsel seek to answer these questions and more. Our perennial visual fact scenario, a stellar set of panels, topical papers and a whole lot more will make all practitioners much smarter in their use of the Charter. Don’t miss out!

NEWS

Working Manual of Criminal Law The BC Prosecution Service reports that through its editorial work on the Working Manual of Criminal Law, endowment funds in support of law student bursaries at the University of British Columbia, University of Victoria and Thompson Rivers University continue to grow. The Working Manual is co-edited by M. Joyce DeWitt-Van Oosten, QC and John Gordon, QC. Fifteen other Crown Counsel assist in keeping the Manual relevant and up to date for use by criminal law practitioners (both prosecutors and the private Bar). All royalties generated from the sale of the Working Manual are transferred directly from the publisher (Carswell) to the three universities. As of September 2014, the cumulative value of the endowment funds stood at more than $200,000. The funds support bursaries in the name of the Prosecution Service for students who express an interest in criminal law.

CBA NATIONAL NEWS

Entrapment: Who’s Policing the Police? In Canada, entrapment is not considered as a defence to a criminal accusation. Entrapment is not a justification or an excuse to a crime. It does not negate the mens rea nor does it vitiate the free will. To the contrary, entrapment can only be raised once the accused is found guilty. Harout Haladjian of Haladjian Law takes a look at Canada’s entrapment laws

CBA NATIONAL ARTICLE

Follow the Money BITCOIN IS MORE THAN A VIRTUAL CURRENCY: IT’S POWERED BY A SYSTEM THAT COULD REVOLUTIONIZE EVERYTHING FROM CONTRACTS AND WILLS TO LEGAL WORK.

Illustrations by Robert Johannsen

On October 29, 2013, the world’s first Bitcoin ATM went live in a coffee shop in downtown Vancouver, enabling Canadian dollars to be easily turned into bitcoins, and vice versa – another small step toward global acceptance of the world’s favourite cryptocurrency. Despite its wildly fluctuating value against the dollar over the past 12 months, big online retailers such as Expedia and Overstock have started – or signalled their intention – to accept bitcoins as a means of payment. Bitcoin is making inroads into mainstream financial and economic life faster than any of its proponents dared imagine. The currency clearly has serious potential despite being a risky, roller coaster of an investment vehicle. It enables virtually free, frictionless transfer of wealth between individuals, eliminating the need for banks or other financial institutions. It avoids the need for currency exchange commissions, credit card fees or other banking costs. It gives people – especially in the developing world – access to a financial system that might otherwise be out of reach. Read more online DECEMBER 2014 / BARTALK 19

news&events CBABC WLF NEWS

CBABC Women Lawyers Forum Call for Nominations The CBABC WLF seeks nominations on or before 4:30 pm on Friday, January 16, 2015 for two awards to be presented at the CBABC WLF’s Awards Luncheon on April 23, 2015. CBABC WLF AWARD OF EXCELLENCE 2015

DEBRA VAN GINKEL, QC MENTORING AWARD 2015

The CBABC WLF Award of Excellence celebrates the accomplishments of a woman who has succeeded in breaking new ground for women in the legal profession in BC. This award celebrates the woman’s distinguished career achievements and her outstanding contributions to women in the legal profession as a change agent, leader and mentor. Candidates must have successfully advanced changes in the practice of law for women lawyers, including: leadership, mentoring, education, writing, the development of policies, systems, development of new firms and community work. Consideration is given to candidates who have worked on issues related to the practice of law for women, retention, upward mobility, firm culture general advancement of women in law or who have broken new frontiers for women through their leadership roles.

This award honours the memory and accomplishments of Debra Van Ginkel, QC, who believed that all people, women lawyers especially, need a mentor to support and encourage them in their profession and their lives. Candidates must support women’s issues and be a role model for women in the law by building trusting, collaborative and authentic relationships. Candidates must be empathetic, encouraging and non-judgmental while celebrating others’ successes. Candidates must have participated for at least one year in the WLF Mentoring Program and be current members of the CBA and the CBABC WLF.

NEWS

CLEBC Update EMPLOYMENT STANDARDS IN BRITISH COLUMBIA – ANNOTATED LEGISLATION AND COMMENTARY No other resource brings you current, time-saving and reliable answers to your employment standards questions. This annually updated manual provides a practical, one-stop guide to the Employment Standards Act and Regulation. Written by leading practitioners, Employment Standards

20 BARTALK / DECEMBER 2014

Nomination forms and further information are available from cbabc.org or call toll free at 1-888-687-3404 or 604-687-3404.

in British Columbia fills an important gap. The authors bring the ever-expanding body of tribunal and court decisions under control by judiciously selecting and succinctly summarizing those that are most significant. They have opened up their extensive, accumulated knowledge of practice with helpful commentary on the key issues under the Act. Online only annual subscriptions are also now available! CLEBC’S CPDONE PASS! Starting in January 2015, CLEBC will introduce the CPDone Pass: a new option for purchasing programs. Purchasers can obtain

12 hours of CPD credit through CLEBC by choosing from several online learning options such as live webinars, CLE-TV, rebroadcasts (e.g. Last Kick at the Can) and Self-Paced eLearning. You’ll be able to complete your annual CPD requirements easily, conveniently and affordably! Purchase the Pass once, and then decide which online programs you would like to participate in at your leisure. Priced at only $850 + taxes per year. For more information about CLEBC products and services, see cle.bc.ca.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from August 27, 2014 to October 28, 2014 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclusively at cbabc.org. AGRICULTURAL LAND COMMISSION AMENDMENT ACT, 2014, S.B.C. 2014, C. 25 Act is in force September 5, 2014 FORESTS, LANDS AND NATURAL RESOURCE OPERATIONS STATUTES AMENDMENT ACT, 2014, S.B.C. 2014, C. 7 Sections 4 and 5 are in force October 24, 2014 MISCELLANEOUS STATUTES AMENDMENT ACT, 2013, S.B.C. 2013, C. 12 Sections 22 and 23 are in force October 24, 2014

BRANCH & BAR

Calendar DECEMBER 5 CBABC PD: Sharing Offices: Playing Nice & Protecting Yourself — Online 6 2014 Annual General Meeting — Westin Wall Centre, Richmond 6 Provincial Council Meeting — Westin Wall Centre, Richmond 12 CBABC PD: Project Management in the Practice of Law — Online 19 CBABC PD: Don’t Get Lost at Sea: A Beacon for Law Practice Accounting — Online 25 Christmas Day 26 Boxing Day

JANUARY

1 New Year’s Day 23 Executive Committee Meeting

EVENT RECAP

2014 Mentoring Receptions at UBC and UVic

Left photo: Alex Shorten, CBABC President (middle) stands with (from left to right) Harman and Sarah Martin, who are all from UBC and received the CBA Entrance Scholarship Award, and Vanessa Mensink, also from UBC, who received the CBA Financial Services Law School Achievement Award. Right photo (from left to right): Alex Shorten, CBABC President stands with Joelle Karras and Jeremy Henderson from UVic, who both received the CBA Entrance Scholarship Award.

DECEMBER 2014 / BARTALK 21

news&events TIPS FROM

When it comes to Christmas, the employment lawyer’s mind is easily distracted by visions of sugar plums, festive window displays and of course the draconian employment practices depicted in Dickens’ A Christmas Carol. Whether you represent the Scrooges or the Cratchits of today, your short holidays should feature as few wintry evenings in the courthouse as possible. If you’re not using some kind of quantum tool to estimate dismissal notice periods, and if your client is a Scrooge, you might be spending New Years arguing your Bill before the Registrar. If you’re with Cratchit, you better believe it’s pro bono. In either case, you took instructions before a Christmas epiphany turned Camden Town into a wonderland of unbridled profligacy, and you need results fast and cheap. To wit, some tips to speed up your research... and hurry you home. QUICKLAW QUANTUMS: All Courthouse Libraries BC branches, from Cranbrook to Courtenay, Smithers to Surrey, have computers equipped with a Quicklaw subscription. It’s free to use and includes the “Wrongful Dismissal Notice Searcher” tool and the “Canada Wrongful Dismissal Quantums” service. You can find both by clicking on the “All Search Forms” tab near the top of the Quicklaw starting screen. They are the last two products in the list. WRONGFUL DISMISSAL NOTICE SEARCHER: Updated quarterly, with coverage from 1980 to present, this tool provides brief records of wrongful dismissal decisions organized by job category. Plug in job category, position, years employed, age of employee, jurisdiction or any combination of these to quickly see notice periods. CANADA WRONGFUL DISMISSAL QUANTUMS: These are updated weekly, and span from 1997 to present. It offers a comprehensive source of summaries with a tailored search form and dropdown menus. Content is classified by occupation, duration of employment, age, date, notice period, damages for mental distress, failure to mitigate, plus aggravated, punitive and Wallace damages.

KUDOS

Georges A. Goyer, QC

Memorial Award

Professor Isabel Grant

The BC Branch of the Canadian Bar Association awarded an outstanding BC lawyer at the 2014 Annual Bench

and Bar Dinner. Professor Isabel Grant was bestowed the CBABC’s highest honour – the Georges A. Goyer, QC Memorial Award presented by BC Branch President, Alex Shorten. The annual Georges A. Goyer, QC Memorial Award was created in 1992 to recognize exceptional contributions to the legal profession, to jurisprudence or to the law in British Columbia. The award was established in memory of Georges A. Goyer, QC, a respected member of the BC Branch, who passed away after a courageous battle with cancer. Read more online

2015 CBABC Legal Directory Order extensive and up-to-date listing of all lawyers in BC, law-related organizations, courts, judges, commissions and other professional services today! Limited copies available.

CBABC.ORG/DIRECTORY 22 BARTALK / DECEMBER 2014

announcement LAW FOUNDATION OF BRITISH COLUMBIA

Law Foundation Family Law Initiative In 2011, the Law Foundation set up a Family Law Committee with a mandate to review family law information and services available in BC, assess family law needs in the province, identify the impact of the Family Law Act, provide advice about how the Foundation could support family law needs and to note promising areas for new family law initiatives, which the Foundation might consider funding once it has more money. After reviewing relevant reports, holding consultations and assessing the extent of services in BC, the Committee identified various needs and gaps. The Committee heard that the family law system is expensive,

In pixels or print

complex and slow, and while there are significant unmet needs in this area overall, there are populations that are particularly underserved, including Aboriginal peoples, immigrants, people with mental health issues, clients facing violence or power imbalances and those living in rural areas. Other issues identified were: the need for coordinated public legal education and information; the significant unmet need for representation and help in preparing documents; assisting clients dealing with violence, high conflict and problems with access; and the need for research in certain key areas. Based on its work in 2011, 2012 and 2013, the Committee set as priority areas: the development of family law information and self-help resources, support for modified representation and support for out-of-court

resolution or mediation. Even without extra money, work could be done on co-ordinating and promoting resources and services, making self-help materials available online and it might be possible to support mediation or conflict resolution services for low-income families. If financial circumstances improve and more money is available, the Foundation would consider support for specialized family law advocacy programs, an expansion of the Family LawLINE or a pilot on early neutral evaluation. The Law Foundation welcomes input from the profession about how it can best contribute to meeting the family law needs of the people of BC. Please feel free to contact Wayne Robertson, QC or Veenu Saini at the Law Foundation at 604-688-2337, or wrobertson@ lawfoundationbc.org, vsaini@ lawfoundationbc.org.

The journal most frequently cited by the Supreme Court of Canada is free to CBA members. Read The Canadian Bar Review online at cba.org/cbr. cba.org/membership CBA member benefits also include access to other publications, Professional Development program discounts, advocacy and Sections & Conferences involvement.

DECEMBER 2014 / BARTALK 23

professionaldevelopment \\EMAIL: PD@CBABC.ORG

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CBABC Professional ON-DEMAND CPD Development courses are designed to meet the needs of lawyers while still maintaining

the opportunity toneed network and advance one’s career, practice and business. We pride ourselves in bringing Short on time and to catch up with your CPD? CBABC offers On-Demand CPD in various formats that will courses to busy lawyers that willCBABC provideprides the required professional and ethics, client caretoand relations, meet your schedules. ourselves in bringingresponsibility Professional Development courses lawyers that and provide practicethe management component for 2014 Law Society British Columbia reporting. will required professional responsibility and ethics,of client care and relations, and practice management components for 2014 Law Society of British Columbia reporting.

A Friendly Reminder: Complete your 12 hours of continuing professional development (CPD) by December 31, 2014. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics, client care and relations, and practice management.

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VOICE YOUR OPINION Did we miss out on any topics that are important to your practice? Are you interested in being a PD speaker? We’d love to hear from you! Email us at pd@cbabc.org

24 BARTALK / DECEMBER 2014

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barmoves Whoâ&#x20AC;&#x2122;s Moving Where and When Julia Hincks

Kate Parisotto

joined Ng Ariss Fong, Lawyers as an associate upon completing her articles with the firm and call to the Bar on May 1, 2014. She is practising in the areas of Aboriginal and environmental law.

has joined Ng Ariss Fong, Lawyers as an associate after completing her articles with the firm. She is practising in the areas of administrative and health law.

Steven Dvorak

Jennifer Wiegele

has joined Cassel Brock as a partner, practising exclusively in insolvency and related commercial litigation.

joins Miller Titerle + Company LLP where she will focus on advising business clients on all aspects of workplace law. Jennifer brings to the firm more than ten years of experience in labour and employment law.

John A. Dickieson

Maria Oâ&#x20AC;&#x2122;Mahony

joined Legacy Tax + Trust Lawyers in mid-September. After completing his articles at Fasken Martineau DuMoulin LLP, he is now practising in the area of tax litigation.

has joined Maynard Kischer Stojicevic as an associate after completing her articles with the firm and call to the Bar on Sept 21, 2014. Her practice focuses on Immigration and Citizenship law.

Kathryn Sainty

Wanda Simek

retired as the Registrar of the Supreme Court in June. She now practises at Sainty Law as an arbitrator, mediator and litigation consultant emphasizing matters before the registrar.

is an associate at Hakemi Ridgedale LLP. She brings broad experience to matters, including shareholder and partnership disputes, defamation, professional negligence, real estate litigation and construction litigation.

Andrew Prior

Wesley McMillan

has become a shareholder in Pihl Law Corporation. Andrew joined the firm as associate counsel in April 2013. Prior to joining Pihl Law Corporation, Andrew was a partner with Fraser Milner Casgrain LLP in Vancouver.

brings extensive real estate and construction dispute experience to Hakemi Ridgedale LLP as their new associate counsel.

26 BARTALK / DECEMBER 2014

SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO CBA@CBABC.ORG NOW. TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1412

Andreas Heiden joins McCullough O’Connor Irwin LLP as an associate. Andreas comes to us from the Vancouver office of a western Canadian firm. He will continue to practise corporate and securities law.

newmembers September & October 2014 Associates

Articling Students

Agnna Varinia Guzman

Embarkation Law Group Vancouver

Patrick Beechinor

McCarthy Tétrault LLP Vancouver

Maria - Christina Kezas

MC Keza Law Office Athens, Greece

Jeffrey Bichard

Davis LLP Vancouver

Regular Members Lisa Andrews

Thomas E. Barnett

joins McCullough O’Connor Irwin LLP as an associate. Lisa comes from a large Vancouver based firm. She will continue to practise corporate and securities law.

Paul Ernest Brunetta

Brooke Browning

Bull Housser Vancouver Elise Harris

Prince Rupert

RDM Lawyers LLP Abbotsford

Henley & Walden LLP Sidney

Fraser Hartley

Sangra Moller LLP Vancouver

Michael Delaney

North Shore Law LLP North Vancouver

Stephen Headley

Gowling Lafleur Henderson LLP Vancouver

Pavan K. Grewal

Elizabeth L. Robinow joined Ridgway & Company as an associate in October, serving the Cowichan Valley and beyond. She is practising commercial and civil litigation, family, and wills and estates planning.

Shergill & Company, Trial Lawyers Surrey

Cameron B. Kennedy

Guild Yule LLP Vancouver

Jennifer Groenewold

Alexander Holburn Beaudin + Lang LLP Vancouver

Lindsay McGivern

Guild Yule LLP Vancouver

Edmundo P. Guevara

Singleton Urquhart LLP Vancouver

Clint G. Megaffin

Alexander R. Hudson

Jerry Nguyen

Blair Lockhart

Harry Hal Louis Oreck

Victoria

Davis LLP Vancouver

Chris D. Drinovz has joined FV Employment & Disability Law, a recently launched workplace law boutique serving the Fraser Valley. He practises all areas of workplace law.

Denis Silva has joined the British Columbia Securities Commission as senior legal counsel.

McCarthy Tétrault LLP Vancouver

BC Securities Commission Vancouver Linda L. Selbie MacDonald

Crown Counsel Vancouver Oscar Miklos

Munro & Crawford Vancouver

Oreck Karby Vancouver

Pamela Sihota

Warner Bandstra Brown Terrace Heidi J. Straarup

Sonya C. Pighin

F Kenneth Walton Law Corporation Victoria

Elizabeth L. Robinow

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William K. Spisso

Sania Ahmed Matthew D. Allard

Cedar Law Victoria

Ridgway & Company Duncan Nixon Wenger LLP Vernon Roshni R. Veerapen

Boughton Law Corp. Vancouver

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DECEMBER 2014 / BARTALK 27

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