Posts by Gareth Carline

Gareth Carline
Wednesday, November 9th, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

Minimum wage applies to all employees regardless of how they are paid-hourly, salary, straight or partial commission basis or other incentive basis. As of November 1, 2011, the second of a three-stage increase in the minimum wage in British Columbia to $9.50 per hour took effect. At the same time, the new minimum wage rate of $8.75 per hour took effect for employees who serve liquor directly to customers in premises licensed to sell liquor under the Liquor Control and Licensing Act.

The third increase that will bring the general minimum wage to $10.25 per hour and the liquor-server wage to $9.00 per hour is due to take effect on May 1, 2012.

It should also be noted that effective May 1, 2011, the First Job Wage, colloquially referred to as the “training wage,” was repealed and all hourly-paid employees are now entitled to the general minimum wage, regardless of how long they have been engaged in the paid labour force.

Proportionate to the increases in the minimum wage rate, the British Columbia government also increased the non-hourly rates paid to live-in home support workers, live-in camp leaders and resident caretakers and also raised the piece rates for hand-harvested crops.

For more details on minimum wage changes please see the B.C. government’s website at http://www.labour.gov.bc.ca/esb/facshts/min-wage.htm

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Labour & Employment | ....
Gareth Carline
Wednesday, November 9th, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

The issue of employees’ misusing company computers is commonplace.  In 2000, Xerox was monitoring all of its 92,000 employees’ computer usage and terminated 40 employees in the United States for accessing pornography on work time[1].  Similarly, the luxury automobile company, Rolls Royce, suspended 14 employees for inappropriate use of the work internet computers[2].  Closer to home, the RCMP very recently suspended a long-standing officer for adult material found on his work computer[3].

Yet, despite the frequency of these events, there remains very little case law in British Columbia on the subject of spyware surveillance.  Largely the issue is raised in an arbitration context in union employment, for which there are distinguishing factors such as provisions in the collective agreements that address the subject.

On the legislative front, however, the applicable law on the subject is found in the Personal Information Protection Act[4] (“BCPIPA”).  The BCPIPA, it should be noted, has been ruled substantially similar to its federal counterpart, the Protection of Personal Information and Electronic Documents Act (“PIPEDA”). Therefore, the BCPIPA supersedes in British Columbia.  It is also noteworthy that the BCPIPA, unlike the PIPEDA, is not restricted to public works; it applies instead to “all organizations” (s. 3).

Also noteworthy in the BCPIPA is an interesting clause, section 13, concerning the collection, use and disclosure, without consent of employee, personal data that essentially states that consent is not required for reasonable collection of information, so long as notification is given.  Section 13 reads, in part:

COLLECTION OF EMPLOYEE PERSONAL INFORMATION

13

(1) Subject to subsection (2), an organization may collect employee personal information without the consent of the individual.

(2)    An organization may not collect employee personal information without the consent of the individual unless

(b)    the collection is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.

(3)    An organization must notify an individual that it will be collecting employee personal information about the individual and the purposes for the collection before the organization collects the employee personal information without the consent of the individual.

The onus is on the employer to establish that the personal information it is collecting about its employees, through installation of monitoring software on the company-owned computers, is “reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual”.  Moreover, the employer is required to “notify” the employee, in advance, that it will be collecting employee personal information [S.13 (3)].

An example of where the employer was found to have violated the statute with its spyware surveillance is Re University of British Columbia[5].  In that case, the university had a policy that allowed some incidental personal internet usage so long as it did not interfere with an employee’s work.  However, the university suspected a particular employee was spending too much time on personal internet usage and investigated by placing spyware on the employee’s computer.  The results led the university to terminate the employee, which led to wrongful dismissal arbitration.  The Privacy Commission held that the university had acted unreasonably, particularly in not first warning the employee about the impugned behaviour, and in violation of the notice requirements of the Act.  The Commissioner came short of ordering the evidence inadmissible at the arbitration, but strongly suggested that using such evidence was inappropriate and would undermine the privacy legislation in place.


[1] http://www.theregister.co.uk/2000/07/15/xerox_fires_40_in_porn/

[2] http://www.theregister.co.uk/1999/05/05/rollsroyce_emailers_jobs_still/

[3] http://www.theprovince.com/Senior+Mountie+docked+sexy+videotapes/5621049/story.html

[4] SBC 2003, c. 63

[5] 2007 CanLII 42407 (BC IPC)

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Labour & Employment | ....
Gareth Carline
Wednesday, October 26th, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

In British Columbia, the Privacy Act (“Act”) enacted in 1968 was the first in the country.  It created a statutory tort or civil right of action for an invasion of privacy when the common law did not.  Section 1 of the Act reads:

Violation of Privacy Actionable

1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

However, the right of privacy is not absolute, as sections 1(2) and 1(3), together, create a scheme that protects only a certain degree of privacy.  These provisions establish a two-step process to successfully advance a claim under the Act.

Under the first step, a person must establish that the claim of privacy is “reasonable in the circumstances” (s.1(2)).  The Act does not define privacy.  Instead, the Courts have adopted their own definition that it is, “(t)he right to be let alone, the right of a person to be free from unwarranted publicity”[1].

The Court has identified four types of privacy interests to be protected[2]:

  1. Intrusion upon a person’s seclusion or solitude, or into his private affairs;
  2. Public disclosure of embarrassing private facts about the person;
  3. Publicity which places the plaintiff in a false light in the public eye;
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Perhaps the most important “circumstance” in determining whether the claim to privacy is reasonable, is the nature of the person’s location at the relevant time[3].  For instance, a person has a more reasonable expectation of privacy in their bedroom, than they do on the sidewalk.  In the workplace, there may be a similar difference between an employee’s break area and their work area.  However, while the location is significant, it does not override any other circumstances.  The courts have found a reasonable expectation of privacy despite being in a public location[4].

Under the second step of the test, the Court must consider the “nature, incidence and occasion of the act” and the “relationship between the parties” to determine whether the infringing act is a violation of that privacy.

A specific requirement is that a violation be done “wilfully” and without claim of right[5].  The word “wilfully” is narrowly interpreted to mean that the person must not only have intended to do the alleged act, but also that the person knew or should have known that their act would violate the victim’s privacy[6].  The term “claim of right” means that there must be at least an honest belief in the existence of a state of facts which, if it actually existed, would at law justify or excuse the act done[7].

The Act further circumscribes the scope of “violation” in section 2(2), by deeming specific acts as not violations, which include[8]: acts done with consent; acts incidental to defending one’s person or property; acts authorized by law, court process or court order; and publications that are of public interest or are fair comment on a matter of public interest.

Although the Act creates a potential liability to employers for breach of privacy, the statutory scheme has established several potential defences.  Further, and quite notably, the Act does not necessarily preclude relying on evidence collected in breach of the Act.  The Court has stated that video surveillance of an employee, whether it breached the Act or not, may be used in evidence of the employee’s termination[9].  Similarly, the Privacy Commissioner, in University of British Columbia (Re), 2007 CanLII 42407 (BC IPC) in dealing with the counterpart privacy legislation, the Freedom of Information and Protection of Privacy Act (“FIPPA”), restricted her order so as not to preclude evidence gathered by the employer, using a spyware to surveil an employee, from being used in the arbitration of the employee’s dismissal[10].


[1] Davis v. McArthur, 17 D.L.R. (3d) 760 (CA), paras. 7-8

[2] Heckert v. 5470 Investments Ltd., 2008 BCSC 1298, para. 73.  These four categories were also described as solitude, intimacy, anonymity and reserve by the author in A Preliminary Exploration of Workplace Privacy Issues In Canada, Vance Lockton and Richard S. Rosenberg, April 10, 2006, http://www.cs.ubc.ca/~lockton/workplace.pdf, at pg. 6.

[3] Silber et al. v. British Columbia Television Broadcasting System Ltd. et al., 25 D.L.R. (4th) 345, para. 18

[4] Heckert, supra., para. 81

[5] Section 1 of the Act.

[6] Hollinsworth v. BCTV 1998 CanLII 6527 (BC CA), (1998), 59 B.C.L.R. (3d) 121 (C.A.), at para. 29

[7] Hollinsworth, supra., at para. 13, see also Davis v. McArthur, 10 D.L.R. (3d) (BCSC) (overturned on other grounds)

[8] Section 2(2) and (3) of the Act.

[9] Richardson v. Davis Wire Industries Ltd., 1997 CanLII 4221 (BC SC) at para. 48

[10] University of British Columbia (Re), 2007 CanLII 42407 (BC IPC)

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Labour & Employment | ....
Gareth Carline
Monday, August 22nd, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

The importance of careful and accurate drafting of business contracts cannot be stressed enough.  However, as careful as a party may be in drafting the contract and as clear as the contractual terms may appear to the parties at the time they are signing the contract, at some point during the operation of the contract, there may arise a dispute between the parties as to the meaning of an ambiguous term in the contract-a term that is open to more than one meaning.  What is the court to do in such case?

The British Columbia Court of Appeal, in a quartet of cases – Grace Residences Ltd. v. Whitewater Concrete Ltd.[1]; Group Eight Investments Ltd. v. Taddei[2], Chuddy v. Merchant Law Group[3], and Gilchrist v. Western Star Trucks Inc.[4]- has delineated instructive principles of contractual interpretation.  These principles may be summarized as follows:

1.     The words of the agreement are the starting point and the most significant tool for interpretation.[5]

2.     The Court must interpret the words objectively, referring to the plain and ordinary meaning, unless it would lead to an absurdity.[6]

3.     The proper “plain and ordinary” meaning must take into consideration the contract as a whole, the intention of the parties expressed within the contract, and the circumstances at the time the contract was entered into[7];

4.     The Court’s will assume that each particular word was selected for a purpose and may reject an interpretation that renders a provision ineffective[8].

5.     Only if the plain and ordinary meaning of the words still results in an ambiguity such that there remain two plausible interpretations, the Court may consider extrinsic evidence regarding the intention of the parties[9].

6.     If extrinsic evidence is relied upon, the Court should interpret the words in a manner consistent with sound commercial principles and good business sense and avoid any commercially absurd meaning[10].

Following these guidelines will assist in avoiding pitfalls when drafting and, if a dispute does arise, in understanding how a Court may decide.


[1] 2009 BCCA 144

[2] 2005 BCCA 489, 57 B.C.L.R. (4th) 278

[3] 2008 BCCA 484, 300 D.L.R. (4th) 56

[4] 2000 BCCA 70

[5] Gilchrist, supra, paragraph 17

[6] Grace Residences Ltd, supra, paragraph 23-25, Group of Eight Investments Ltd., supra, paragraph 20

[7] Chuddy, supra, paragraph 207, Grace Residences Ltd., supra, paragraph 23-25

[8] Grace Residences Ltd, supra, paragraph 23-25, Group of Eight Investments Ltd., supra, paragraph 20

[9] Chuddy, supra, paragraph 207

[10] Chuddy, supra, paragraph 207, Group of Eight Investments Ltd., supra, paragraph 21

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Posted by Shafik Bhalloo (posts) and Gareth Carline (posts) | Filed under Other | ....
Gareth Carline
Monday, August 8th, 2011    Posted by Gareth Carline (posts) and Shafik Bhalloo (posts)
Gareth Carline
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

Company websites are ubiquitous.  They are a necessary form of marketing in any industry.  One of the methods of exploiting the value of this medium is to use images and videos of employees as part of the advertisement: as a friendly face on display under the “Our Team” section; or as free models and actors for advertising photographs and videos.  Before doing so, employers should be aware of the potential liability arising from statutory protections of privacy.

Personal Information and Privacy Act (“PIPA”)

The Personal Information and Privacy Act, S.B.C. 2003, c.63, restricts the collection, use and disclosure of personal information by private companies.  Violating this act can bring the employer before the Information and Privacy Commissioner with potential liability for any harm caused.

Under PIPA, employers may be in a position to disclose information classified as “employee personal” but which is not otherwise “personal”:   These two terms are defined as follows:

“employee personal information” means personal information about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual, but does not include personal information that is not about an individual’s employment;

“personal information” means information about an identifiable individual and includes employee personal information but does not include

(a) contact information, or

(b) work product information;

Notably, contact information is not considered personal information, and therefore may be disclosed in company websites.

However, images are considered “personal information”.  In Shoal Point Strata Council (Re), 2009 CanLII 67292 (BC IPC), the Commissioner expressly included video surveillance images as a form of personal information:

[60] …Accordingly, while recorded images are not generally highly sensitive, they can and do constitute personal information of individuals and that information can, particularly viewed cumulatively or over time, convey a great deal of information about the filmed individuals, their personal lifestyle and habits…

Unlike ordinary “personal information”, employers are allowed to collect, use and disclose employee information if the employee consents, if the information reasonably collected for the purpose of establishing, managing or terminating an employment relationship (ss. 13, 16, 19).

The statute does provide some specific exemptions for when consent is not required (s.12, 15 and 18), which include:

(a) when it is clearly in the employee’s interests and consent cannot be obtained in a timely way,

(b) when it is necessary for medical treatment and the employee is unable to give consent, or there are compelling circumstances that affect the health or safety of any individual and then only if notice of the employer’s conduct is mailed to the last known address of the employee to whom the personal information relates,

(c) when obtaining consent would compromise an investigation or proceeding in which the information is reasonably required,

(d) when the information is collected by observation at a performance, a sports meet or a similar event that the employee voluntarily attends and is open to the public,

(e) when the information is available to the public from the sources prescribed by law,

(f) when it is necessary for determining entitlement to an honour, award or similar benefit, or being selected for an athletic or artistic purpose,

(g) when it is necessary in order to collect or repay a debt owed,

(h) when it is required by law, including complying with a subpoena, warrant or order to compel the production of personal information,

(i) when it is to a public body or a law enforcement agency in Canada, concerning an offence under the laws of Canada or a province, to assist in an investigation, or in the making of a decision to undertake an investigation,

(j) when it is for the purpose of contacting next of kin or a friend of an injured, ill or deceased individual,

(k) when it is to a lawyer who is representing the employer, or

(l) when it is to an archival institution if the collection is reasonable for research or archival purposes.

The statute also specifically sets out when consent is implied (s.8), though this is, again, only in specific circumstances:

(a)    where the employee has volunteered the information in circumstances where the use of the of information would have been reasonably understood;

(b)   where it is for enrolment or coverage under an insurance, pension, benefit or similar plan, policy or contract, whether the employee is benefitting directly or as a beneficiary; and

(c)    where the employer specifically advises the employee about the purpose for the collection, use and disclosure of the information, the employer also provides a reasonable time for the employee to decline, the employee does not decline, and the employer’s collection, use and disclosure is reasonable.

If the Privacy Commissioner concludes that there has been a breach of the statute, the employee may then take the Commissioner’s findings to Court and sue for any damages that have resulted.

Privacy Act

Like PIPA, the Privacy Act,  R.S.B.C. 1996, c. 373 creates a cause of action and liability, this time relating to the use of a person’s “portrait” without their consent:

Unauthorized use of name or portrait of another

3  (1) In this section, “portrait” means a likeness, still or moving, and includes

(a) a likeness of another deliberately disguised to resemble the plaintiff, and

(b) a caricature.

(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

There are some exceptions to this liability, such as exempting group photographs where the person is not specifically defined or not portrayed in a manner intended to exploit their name or reputation.

In Poirier v. Wal-Mart Canada Corp., 2006 BCSC 1138, Wal-mart used a manager’s image in a welcoming advertisement in their store.  The manager had consented to the use of his portrait.  He was later terminated for just cause, but Wal-mart continued to use the same advertisement with his image.  The Court held that the termination also terminated the consent and the continued use of the portrait required re-obtaining the manager’s consent.

Unlike in PIPA, the Privacy Act does not require proof of any damages.  The Walmart decision surveyed various damages awards and noted that damages were weighed by the level of embarrassment caused and the commercial advantage gained by the use of the person’s portrait, and have included awards from $500 to $35,000.  In that decision, the Court awarded the manager $15,000 for the breach of privacy.

Summary

The above two statutes create a general requirement to obtain the consent of employees before being able to use their image on company websites.  If an employee is unwilling to cooperate, an employer should consult these statutes or obtain legal advice on whether their circumstances fall within the specific exceptions of the statutes.

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Posted by Gareth Carline (posts) and Shafik Bhalloo (posts) | Filed under Labour & Employment | ....