2008
 
AN UPDATE ON BC'S FIVE NEW UNIVERSITIES 
The University Amendment Act, 2008 received Royal Assent on May 20, 2008. The Act allows for the designation by the Lieutenant Governor in Council of special purpose, teaching universities, subject to the provisions of the University Act. As previously announced Capilano College, Emily Carr Institute of Art + Design, Kwantlen University College and Malaspina University-College and University College of the Fraser Valley become universities. The formal designation was made on July 10, 2008 by Order in Council 578/08, and is effective September 1, 2008. The Order in Council also specifies the geographical area each of the new universities must serve. Emily Carr University of Art + Design will serve the whole province, with applied and professional programs in visual arts, design and media arts. Each of the other new universities will provide additional post-secondary programs in English as a second language and adult special education and have a mandate to serve designated areas linked to specific school districts. Capilano University will serve the North Shore, Howe Sound and the Sunshine Coast; Kwantlen Polytechnic University will serve Langley, Surrey, Delta and Richmond; Vancouver Island University will serve Nanaimo-Ladysmith, Qualicum, the Cowichan Valley and Powell River, and University of the Fraser Valley serves the central and eastern Fraser Valley. Our last issue of Campus Counsel outlined some of the issues that must be addressed as these institutions transition themselves to universities. Clark Wilson LLP is very pleased to be assisting each of the five new universities with the transition process. Anyone with questions regarding the new legislation is welcome to contact Larry Munn at lm@cwilson.com or at 604.643.3160, or any other member of Clark Wilson’s Higher Learning Group.
IMPROVEMENTS TO THE OFF-CAMPUS WORK PROGRAMS AND POST-GRADUATION WORK PERMIT PROGRAMS
Recently, the Honourable Diane Finley, Minister of Citizenship and Immigration has initiated improvements to the Off-Campus Work Programs and Post-Graduation Work Permits for international students. The Government of Canada believes that these changes will help create a pool of individuals who, with work experience, will find it easier to apply to immigrate to Canada. The goal is to “retain international graduates with Canadian qualifications, work experience and familiarity with Canadian society, such that this will benefit Canada and increase the country’s competitiveness.” These new initiatives were introduced to ‘bridge the gap’ between education and work experience to further facilitate the ability of international students to immigrate to Canada. Provincial Nominee Programs and the newly proposed Canada Experience Class are based upon the premise that international students should be able to transition and become future immigrants of Canada. Effective April 21, 2008, the Post-Graduation Work Permit Program was changed to allow international students to obtain open work permits with no restrictions on the type of employment and no requirement for a job offer. In addition, the duration of the work permit has been extended to three years across the country. The program previously only allowed international students to work for one or two years, depending on location. In order to be eligible for the program, international students must have studied full-time for the eight months preceding the completion of their program of studies and have graduated from: a public post-secondary institution, such as a college, university or CEGEP; or a private post-secondary institution that operates under the same rules and regulations as public institutions, and that receives at least 50 percent of its financing for its overall operations from government grants; or a Canadian private institution authorized by provincial or territorial statue to confer degrees. The international students must apply for a work permit within 90 days of receiving written confirmation (an official transcript of an official letter) from the institution that they have met the requirements of the academic program; they must have completed and passed the program of study and receive a notification that they are eligible to obtain their degree, diploma, or certificate; and must have a valid study permit when they apply for the work permit. International students may not be eligible for this program if they have previously been issued a post-graduation work permit after any other program of study; participated in a Canadian Commonwealth Scholarship Program or a Government of Canada Awards Program; or received funding from the Canadian International Development Agency and participated in a distance learning program. Effective May 20, 2008, there is a pilot expansion of the Off-Campus Work Permit Program for international students in British Columbia. International students studying at eligible private post-secondary institutions in British Columbia can apply for off-campus work permits. Previously, only international students at public universities and colleges in the province were able to apply. The Government of Canada and the Province of British Columbia have agreed that only those international students enrolled in qualifying programs offered by an eligible institution authorized to grant degrees will be eligible for the Off-Campus Work Permit Program pilot expansion. Eligible institution now includes a Canadian privately-funded post-secondary education institution that is located in a participating province or territory. The Off-Campus Work Permit Program pilot will be in place for a four-year period after which there will be a comprehensive review undertaken by the province. This pilot program is being implemented on a province-by-province basis: the three participating provinces thus far are British Columbia, Manitoba and Alberta. In order to facilitate the processing of the Off-Campus Work Permit Program initiative, Citizenship and Immigration Canada has modified its Client Service’s function on its website to allow international students to have 24 hour access to apply online for the Off-Campus Work Permit, request verification of good standing from the school, and pay online for the application. For further information, please contact Ron McKay at 604.643.3148 or rem@cwilson.com, or any member of Clark Wilson’s Higher Learning Group.
AN UPDATE ON THE LAW OF OVERTIME CLAIMS
In many work environments, employees put in extra hours beyond the periods which they have agreed to work. An employee may be disinclined to make overtime claims, while employed. Often, it was only after the employee resigns or is terminated that the employee brings a claim for overtime pay. Until 2006, the Employment Standards Branch was considered to have exclusive jurisdiction over overtime claims based upon the Employment Standards Act (the “Act”). Only claims for overtime pay based on an express contractual provision could be brought in court. In 2006, the BC Supreme Court found that the substantive provisions in the Act formed implied terms of the employment contract and, as such, overtime claims could be pursued in court. In other words, the court specifically found that it had jurisdiction to hear claims based on the Act provisions. This procedural determination exposed large employers (such as universities and other institutions of higher learning) to significant risk, because it opened the door to class actions by employees who might have overtime claims under the Act. Such employers will be happy to learn that in Macaraeg v. E Care Contact Centres Ltd. 2008 BCCA 182, the BC Court of Appeal has now overturned the decision of the lower court. The Court of Appeal made two important findings:
Consequently, the only way an employee or ex-employee may make an overtime claim in court is if the claim is based on a separate contract between the employer and the employee which grants the right to overtime pay. In the absence of such an express contract, the employee must bring an overtime complaint (based on a breach of the Act) to the Employment Standard Tribunal, which is a more limited claim than a civil action. Employers will welcome this decision because it virtually eliminates the possibility that a class action law suit for overtime claims will be able to proceed in BC. Previously, a number of employees could commence a single law suit in which each employee’s overtime claim would form part of the action. Similar class action law suits for overtime pay have been commenced in the U.S. and Ontario; for large employers. These claims can be significant; small amounts of overtime aggregated over a large group of employees over an extended period can add up. Since overtime claims in court are now limited to claims based on breach of specific contracts, unless large numbers of employees have identical contracts on which to base a claim, each action will be limited to a single claim. Most individual employees are disinclined to sue their employer for overtime unless the claim is of sufficient size to warrant the cost of a law suit, or forms part of other claims the employee may have, such as wrongful dismissal. Note that it is possible that the Macaraeg decision will be appealed to the Supreme Court of Canada. However until then, the Employment Standards Tribunal has exclusive jurisdiction to hear claims based on overtime sections in the Act and as such, an employee has 6 months from the date of termination or the date the claim arose to commence a claim. Whether or not only the Employment Standards Tribunal has the jurisdiction to hear overtime claims, employers should still take steps to ensure that they actively manage the hours their employees are working. Accordingly, the following is a brief review of overtime liability and steps employers can and should take to minimize that liability. Overtime Liability - A ‘Backgrounder’ General Principles. Claims for pay for hours worked in excess of standard daily or weekly hours may be based on:
Who is affected? Collective agreements usually deal specifically with overtime rates for employees. Therefore, for most campuses, any issues regarding overtime relate to non-union employees who are not ‘managers’ as that term is defined by the Act, or employees who are covered by some form of agreement that is not in compliance with the minimum standards set out in the Act. Employers often assume certain positions involving supervision of staff or management of resources are automatically “management” positions which do not have an entitlement to overtime pay. This may be a mistake; if an employee only has limited authority to act independently, the employee is likely not a manager under the Act. If this is the case and the employer requires or condones overtime (without overtime pay) the Act will likely be violated. How to minimize liability for overtime claims. Even if the Employment Standards Tribunal has the exclusive jurisdiction to hear overtime claims, employers should still take steps to ensure that they actively manage the hours their employees work. That means not turning a blind eye to extra hours regularly worked by employees. Accordingly, employers are advised to take the following steps:
For further information, please contact Nicole Byres at 604.643.3173 or nmb@cwilson.com, or any other member of Clark Wilson’s Higher Learning Group.
SEMINAR ON CCDC2 - OVERVIEW AND REFRESHER
SCC DECISION MAKES IT EASIER FOR EMPLOYERS TO REDUCE LIABILITY FOR WRONGFUL DISMISSAL CLAIMS
Is an employee who has been terminated required to return to work for his employer in order to mitigate his damages? Until recently, it was believed that the circumstances in which an employee was required to return to work for an employer who has terminated him were very limited. However, the recent decision of the Supreme Court of Canada (“SCC”) in Evans v. Teamsters Local Union No. 31 indicates that these circumstances may be broader than previously thought. Mr. Evans, a 23 year employee of the union, was terminated following a heated union executive campaign which resulted in a new executive being elected. Mr. Evans ceased working but was still paid as the parties tried to resolve the issue of severance. When negotiations over the issue broke down, the union issued a letter demanding that Mr. Evans return to work or serve out the balance of a 24 month notice period and that, if he failed to return to work, he would be terminated for cause. When Mr. Evans did not return, the union pleaded failure to mitigate in response to Mr. Evans’ claim for wrongful dismissal. In finding that Mr. Evans failed to mitigate, the majority of the SCC commented on what a court is to consider when determining whether an terminated employee has a duty to mitigate by accepting a position with the terminating employer. In that regard, the majority stated that an objective test will apply: “whether a reasonable person would accept such an opportunity?” While the majority further held that such an analysis would be “multi-factored and contextual”, the primary consideration should be that the employee “not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation”. As a result of this decision, terminated employees will have to consider more carefully any offers of re-employment received from their former employer. While this decision will generally be considered good news by employers, employers should not take from this decision an understanding that any offer made to a dismissed employee of continued employment with the dismissing employer will be grounds for a defense of failure to mitigate. As the Supreme Court noted, the analysis will be “multi-factored and contextual” in nature, meaning that there will no doubt be still some degree of uncertainty on the issue of mitigation for some time to come as other lower courts grapple with how to apply the majority’s reasons. For further information, please contact Allyson Baker at 604.891.7732 or alb@cwilson.com, or any member of Clark Wilson’s Higher Learning Group.
CAMPUS COUNSEL VIA EMAIL
If you would prefer to receive Campus Counsel via email, please send your name and e-mail address to webmaster@cwilson.com. You may access back issues of this and other Clark Wilson LLP newsletters on our website at www.cwilson.com. |
