July 14, 2009

 

REASONABLE NOTICE – IT'S NOT JUST FOR EMPLOYEES ANYMORE

People providing services are either employees or independent contractors. Where an employer decides to terminate the services of an employee without cause, the employee is entitled to "reasonable notice" or pay in lieu of notice as determined by an employment contract or common law, and subject to minimum standards as set out in the BC Employment Standards Act or Canada Labour Code. Because independent contractors do not have the benefit of these statutory minimum standards, many companies assume that unless a contract specifically provides for notice of termination, they do not have any obligations to provide advance notice of termination (reasonable or otherwise) to independent contractors.

This difference in the rights of employees and independent contractors to reasonable notice at the time their services are terminated has increasingly been rejected by our Courts. According to how 'dependent' the independent contractor is on a single company for their income, a right to reasonable notice may be implied into the services contract. In the 2009 decision Smith v. Centra Windows Ltd., the BC Supreme Court explained the analysis the Court would use to determine whether the independent contractor was entitled to reasonable notice of termination:

The question of whether a person is entitled to notice is not decided strictly by a finding of whether the person is either an employee or an independent contractor. The authorities note that there is a continuum of arrangements that can exist between a seller and buyer of labour. At the opposite ends of the continuum are these two mentioned states. An intermediate category has been recognized, and the authorities state that in such relationships there is an implied requirement for notice.

The facts of that case are as follows. After working for almost 14 years in commission sales with Centra, Sydney Smith was terminated. At the time of his termination, he was 50 years of age and the Vice President of Marketing and Development. Fees for the services were paid to Mr. Smith's company, Coquitlam Contracting Ltd.

In terminating Mr. Smith, Centra took the position that he was an independent contractor and was, therefore, not entitled to reasonable notice or pay in lieu of. In rejecting this position, the Court began its analysis with the following observations:

The fact that a person provides services via a corporate vehicle is not dispositive of whether reasonable notice of termination is required. As well, a written agreement stating that a person is an independent contractor is not necessarily determinative. The true nature of the relationship is a question that depends on the facts of each case.

So what does one look at to consider the "true nature of the relationship"? In Centra, the Court took its guidance from two prior decisions of the BC Courts. First, the following questions from Doyle v. London Life Insurance Co., were considered:

  1. Whether or not the independent contractor was restricted to providing services exclusively to the one company.
  2. Whether or not the independent contractor is subject to the control of the company, not only as to what services were provided, but also as to when, where and how the services were to be provided.
  3. Whether or not the independent contractor has an investment or interest in what are characterized as the "tools" required to provide the services.
  4. Whether or not the independent contractor had undertaken any risk in the business sense or, alternatively, had any expectation of profit associated with the delivery of the services as distinct from a fixed commission.
  5. Whether or not the activities of the independent contractor was part of the business organization of the company receiving the services. In other words, whose business was it?

Next, the factors identified in Marbry v. Avrecan International Inc. were considered, recognizing that the factors were not exhaustive nor conclusive (and not every factor must be present) when determining where a particular relationship sits on the continuum between an employer/employee relationship and independent contractor/strict agency:

  1. Duration/Permanency of the Relationship. The longer the duration of the relationship or the more permanent it is militates in favour of a reasonable notice requirement. Amongst other evidence, the purchase and maintenance of inventory, which contains a permanency aspect, should be considered.
  2. Degree of Reliance/Closeness of the Relationship. As these two interrelated sub-factors are increased the more likely it is that the relationship falls on the employer/employee side of the continuum. Included in this factor is whether the sale of the defendant's products amounted to a significant percentage of the plaintiff's revenues.
  3. Degree of Exclusivity. An exclusive relationship favours the employer/employee classification.

In arguing that Mr. Smith was a true independent contractor, Centra raised the following factors:

The Court also considered the following factors, which supported a finding that Mr. Smith was not a "true" independent contractor:

After reviewing the various factors for and against an "independent contractor" arrangement, the Court concluded that:

… the factors that support the finding of a relationship very close to one of employee/employer are numerous and substantial and override those put forth in denial of such a relationship. Mr. Smith was highly integrated into Centra, he was bound by exclusivity to Centra, his activities were under close control of Centra, his remuneration was essentially all from Centra, his relationship with Centra extends back to the company's early years, he was involved in the company's leadership group, and he was closely involved in other activities in the life of the organization such as developing its first website and organizing its annual golf tournaments. Mr. Smith kept Mr. Tilstra advised of his various activities with Central Hardware, KMS, and Mr. Ferrone. I am satisfied that Mr. Smith was in a relationship with Centra that entitled him to a reasonable period of notice.

The Court held that 15 months was required as "reasonable notice" to Mr. Smith and awarded him damages accordingly.

The Centra decision reaffirms the fact that the distinction between the employee/employer relationship and the independent contractor/strict agency relationship is not always clear cut. It also underscores the importance of addressing in the written agreement underlying any service relationship how the relationship can be terminated, and ensuring that the notice provisions are not contrary to minimum standards pursuant to the Employment Standards Act or Canada Labour Code, in case the relationship is later deemed to be that of an employer-employee.

 

IS IT TAXABLE?

Recent Policy Changes to Taxable Employment Benefits

Employers often offer benefits of different kinds to their employee – some are taxable and some are not. On June 11, 2009, Canada Revenue Agency ("CRA") revised its administrative policies with respect to the tax treatment of the following taxable employment benefits. The policy changes provide some welcome clarification and updates to the interpretation of what will be considered to be a taxable benefit.

Changes Effective for 2009 Tax Year

Overtime Meals and Allowances Provided to Employees

CRA's current policy treats certain overtime meals or reasonable allowances for such meals as a non-taxable benefit if the employee worked 3 or more hours of overtime right before or after the employee's scheduled hours of work, and provided that the overtime was infrequent and occasional in nature.

The policy has been revised to provide that CRA will consider no taxable benefit to have arisen if:

Meals or allowances given less often than 3 times per week will generally comply with this standard, as will meals or allowances provided 3 times or more in a week on an occasional basis to meet workload demands (such as major repairs or periodic financial reporting). CRA will consider overtime meal allowances to be a taxable benefit if overtime occurs frequently or becomes the norm as such allowances will then be viewed as a form of additional remuneration.

Paid Travel Expenses within Same Municipality or Metropolitan Area as Employee's Place of Work

CRA will accept that employer-provided travel (including meal) allowances paid for travel within a "municipality" or "metropolitan area" where the employee's place of work is located, may be excluded from an employee's income if the allowance is paid primarily for the benefit of the employer. An allowance will generally meet this standard if its principal objective is to ensure that the employee's duties are undertaken in a more efficient manner during the course of a work shift and the allowance is not indicative of an alternate form of remuneration.

Loyalty Programs

CRA will no longer require an employee to include as part of their taxable income, loyalty points (such as frequent flyer miles) accumulated by an employee on their own personal credit cards when travelling on employer-reimbursed business trips or while incurring other business-related expenses as long as:

Where the employer controls the points (such as with a company credit card), the employer will still be required to report on the employee's T4 the fair market value of any benefits received by the employee.

Employer-Provided Motor Vehicles

CRA will now permit an employee to claim the "operating benefit rate" set annually pursuant to section 7305.1 of the Regulations, rather than the higher rate set by section 7306 of the Regulations, as a reflection of the reasonable benefit received by an employee who has an employer-provided vehicle where all of the following conditions are met:

Effective for 2010 Tax Year

Non-Cash Gifts and Non-Cash Awards

Non-cash gifts and non-cash awards given to an "arm's length employee" will not be taxable to the extent that the total aggregate value of all such gifts and awards to that employee is less than $500 annually. Any value in excess of $500 annually will be taxable. ("Arm's length employee" means an employee who is not related to the shareholders or owners of the employer).

In addition, a separate non-cash long service/anniversary award may also qualify for non-taxable status if:

Surface Transit Passes Provided to Family Members of Transit Employees

While free or discounted surface transit passes provided to transit employees who are employed in the business of operating the transit vehicles will remain non-taxable, passes provided to family members of a transit employee will represent a taxable benefit to the employee.

The full text of Technical News No. 40 (including some examples to assist in interpreting the policy changes) is available at the Canada Revenue Agency website.

 

WHAT CAN THE TRIBUNAL DO?

Remedies at the BC Human Rights Tribunal

When an employee successfully sues for wrongful dismissal, the Court will assess the period of "reasonable notice" and award the employee the income and benefits lost as a result of the failure to give reasonable notice. If an employee successfully establishes he or she has a Human Rights complaint, the Human Rights Tribunal is not limited to the scope of damages that a Court can award. In this article, we will discuss the broader powers the Human Rights Tribunal has to address discrimination and resulting damages.

Section 13 of the BC Human Rights Code (the "Code") sets out the prohibitions against discrimination in the workplace:

  1. A person must not
    1. refuse to employ or refuse to continue to employ a person, or
    2. discriminate against a person regarding employment or any term or condition of employment

    because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

  2. An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).
  3. Subsection (1) does not apply
    1. as it relates to age, to a bona fide scheme based on seniority, or
    2. as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.
  4. Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

Where the BC Human Rights Tribunal concludes that there has been discrimination against an employee that cannot be justified on the basis of "undue hardship" to the employee, the Tribunal's powers to grant a remedy are found in Section 37 of the Code:

  1. If the member or panel determines that the complaint is justified, the member or panel
    1. must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,
    2. may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,
    3. may order the person that contravened this Code to do one or both of the following:
      1. take steps, specified in the order, to ameliorate the effects of the discriminatory practice;
      2. adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and
    4. if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:
      1. make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;
      2. compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention
      3. pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.
  2. An order made under subsection (2) may require the person against whom the order is made to provide any person designated in the order with information respecting the implementation of the order.
  3. The member or panel may award costs
    1. against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
    2. without limiting paragraph (a), against a party who contravenes a rule under section 27.3(2) or an order under section 27.3(3).

In deciding what is appropriate to address a finding of discrimination, the principle guiding the Tribunal is "restitutio in integrum" – to restore a complainant to the position he or she would have been in had the discriminatory act or practice not occurred. Section 37 gives the Tribunal broad discretion regarding possible remedies, enabling the Tribunal to tailor a remedy to the particular circumstances of the complaint. These remedies include the following.

  1. Declaratory relief (Contravention Order and Declaratory Order)

    2. Declaratory relief is a statement from the Tribunal confirming that the act or omission of the employer complained of is discriminatory, that it is contrary to the Code, and that the contravention must cease. In many cases, this statement may simply be a precursor to other forms of relief, particularly if the employment relationship has come to an end. However, where the employment relationship remains in place, the declaratory order can have the effect of reversing the discriminatory act or omission, as is seen in the recent decision in Beaton v. Tolko Industries. In that case, the complainant challenged the calculation of vacation pay under the collective agreement, which was measured by reference to a minimum number of hours of work. As the complainant had taken paternity leave following the birth of his second child, he did not have sufficient hours to qualify. Persons who were away for other reasons, such as WCB, illness, jury duty and other employer-approved leaves, were not similarly penalized as these forms of leave counted towards the calculation of hours worked. The Tribunal concluded that the policy of excluding parental leave hours from the calculation of hours worked was discriminatory on the basis of family status. As part of the relief awarded to the complainant, the Tribunal issued a declaration that the collective agreement provision was discriminatorily unlawful.

  2. Ameliorative order

    3. In addition to the power to make a discriminatory practice cease, the Tribunal also has the power to direct that certain steps be taken to ameliorate the effects of the practice or to implement a program to ameliorate the conditions of persons disadvantaged by the practice.

    Examples of the types of ameliorative orders that have been made to date include: removing material from an employee's personnel file related to the discrimination, circulating the decision to other employees of the employer, providing information to employees as to how to contact the Tribunal, and providing the employee with the right to provide input on what other employees are advised about the dispute.

  3. Reinstating an employee to their position or granting an employee a promotion or other benefit that the employee was denied as a result of discrimination

    4. As part of its power to make orders that put an employee back in the position that the employee would have been in had the discrimination not occurred, the Tribunal may order that the employee be reinstated to their position. In assessing whether such an order is appropriate, it has been accepted that reinstatement is not appropriate if the employee has been terminated for cause, assuming that the cause claimed was not rejected by the Tribunal as discriminatory. The Tribunal will also consider whether the employment relationship can be re-established, which typically involves an assessment of the employee's desire, motivation and attitudes towards a return to their position. While the Tribunal may also look at the impact that the reinstatement may have on others in the workplace, the employer will be required to put forward clear evidence to demonstrate that such a reinstatement would be too disruptive to make an order of this type feasible. The mere fact that there may be challenges associated with the transition will not be sufficient to prevent a reinstatement order if steps can be taken to assist in the transition.

    In Kalyn v. Vancouver Island Health Authority (No. 3), a case that considered sex discrimination in the workplace disciplinary process, the Tribunal found that reinstatement of the employee to her former position was appropriate. To assist the transition, the Tribunal ordered that the employer give notice to those who might be affected by the reinstatement, as well as retain an outside workplace facilitator for a minimum period.

  4. Monetary award to compensate for the loss of income arising because of the discrimination

    5. As part of its jurisdiction to make monetary orders, the Tribunal can make an award to compensate the employee for income lost as a result of the unlawful discrimination. Such an award can compensate the employee for past income loss, future income loss or both. Where the employee has been reinstated, the income loss is typically assessed on the basis of the time away from work.

    Where the employee does not return to his or her position, the Tribunal will not be constrained by what a Court would consider to be "reasonable notice" in a wrongful dismissal claim. Rather, the Tribunal will look at what the employee has actually lost as a result of the loss of the job. In some cases, where the employee is able to find a new position quickly, the award for loss of income may be much smaller than a "reasonable notice" award. However, the converse side of this focus on the actual circumstances of the employee is that an employer may be required to compensate for a period longer than "reasonable notice" if the employee, despite reasonable efforts to find a new job, is unable to do so.

    Pay differentials may in some instances ground a claim for discrimination. Such a finding was made in the Tribunal's 2008 decision in CSWU, Local 1611 v. SELI Canada and others (No. 8). In this case, the Tribunal found that the workers originating from Latin America who worked on the Canada Line construction were paid considerably less (in some case, as much as 80 – 90% less) than those workers brought in from Europe to do the same work. After concluding that such a pay differential constituted discrimination on the basis of race, colour, ancestry and place of origin, the Tribunal ordered that each member of the complainant group be compensated for the difference in pay based on the average pay of the comparator European employee.

    In some cases, the finding of discrimination may be tied to the manner in which the employer has handled the employee's request for an accommodation. A failure to comply with the procedural aspect of the duty to accommodate may give rise to a finding of discrimination even if it is ultimately held that the impugned decision of the employer is itself held to be justifiable. This is exemplified by the Tribunal's recent decisions in Cassidy v. Emergency Medical Health and Services Commission (No. 2) and (No. 3), which considered a complaint filed by a paramedic with multiple sclerosis. Although the Tribunal found that the requirement that a paramedic be able to manually palpate a pulse was prima facie discriminatory to someone with multiple sclerosis, the standard was a bona fide occupational requirement and could not be accommodated without undue hardship to the employer. What the Tribunal faulted the EMSHC for was its failure to address in a timely manner employment alternatives for the complainant within the paramedic service. After initially advising him that he could not be a paramedic if he was unable to meet the manual pulse palpation standard, the employer agreed some 13 months later to permit the complainant to provide driver-only services. The Tribunal held that the complainant was entitled to lost income for approximately 47 weeks, which it calculated based on his income after he returned to work as a "driver only".

    Although "reasonable notice" principles do not apply to the calculation of lost income, the obligation to mitigate does apply. As a result, an employer may put forward evidence (including evidence elicited from the employee's own testimony) to demonstrate that the employee has failed to take reasonable steps to minimize any income loss.

  5. Award of damages for injury to dignity, feelings and self respect or any of them

    6. As with the other types of awards that the Tribunal may make, the concept of "making the complainant whole" underlies the assessment of awards for injury to dignity, feelings and self respect. For many years, such awards tended to be relatively modest in nature, typically well under $10,000. More recently, however, there has been a noticeable increase in some of these awards.

    For example, in the recent case of Senyk v. WFG Agency Network (No. 2), the complainant was awarded $35,000 as part of a decision that found that the employer had discriminated against the employee on the basis of disability. In this case, Ms. Senyk, a 30 year employee, was terminated while on disability. At the time of termination, she had been on disability leave for 2 years but there was evidence that managers at WFG had been frustrated for some time and did not want her to return to work even if she was medically able to so. Rather than communicate with the employee about her situation and prognosis for a return to work, the employer's HR department sent Ms. Senyk an email, terminating her services. The Tribunal found that Ms. Senyk's sense of identity and dignity was very much tied up with her work and that the termination negatively impacted the progress she had made during the disability period. These factors, as well as the company's knowledge of Ms. Senyk's fragile emotional state, all operated in favour of a significant award to compensate for the injury to dignity, feelings and self-respect suffered by Ms. Senyk. Prior to this case, the largest award had been $25,000 in the Tribunal's 2007 decision in Datt v. McDonald's Restaurants (No. 3).

  6. Expenses related to the discrimination

    7. With the recent Senyk decision, the Tribunal's authority to compensate an employee for discrimination has been expanded to include legal expenses incurred by the employee to pursue the complaint itself. Prior to this decision, the type of expenses claimed typically related to amounts expended by the employee to find a new job, to facilitate an accommodation of the employee's condition, to retain a lawyer to represent the complainant before the complaint was filed or to compensate the complainant for non-legal expenses related to the hearing itself.

    For example, in Cassidy (No. 3), the employee was awarded amounts intended to compensate him for expenses he incurred looking for a job out of the area (such as a vehicle refrigerator for his medication, clothing for the new position and travel costs to return to Vancouver to the MS clinic from his new place of work). In addition, Mr. Cassidy was entitled to claim reimbursement of the costs he personally incurred in securing the testimony of experts to support his complaint (this claim was ultimately rejected as it was determined that it was CLAS, an advocacy group which assisted Mr. Cassidy, and not Mr. Cassidy himself that incurred this expense), as well as the income he lost during the portions of the hearing dealing with those issues he was successful on.

    Until Senyk, any awards to compensate for expenses tended to be relatively modest. However, with the release of this decision, as well as the Tribunal's subsequent decision in SELI (No. 9) in which a similar order for hearing-related legal expenses was made, the potential exposure facing employers who proceed unsuccessfully through the Tribunal process has greatly increased. In many cases, the cost of pursuing the complaint is much greater than the financial value of the other awards that may be made by the Tribunal in favour of the complainant.

    The Tribunal's rationale in Senyk for expanding its "expenses" authority was based on several factors, including:

    • The abolition of the BC Human Rights Commission, which meant that the individual complainants were now responsible for the carriage of their own complaints;
    • The limited resources available to complainants to bring complaints on a pro-bono basis;
    • The evidence collected by the Tribunal which concluded that complainants were more likely than respondents to be self-represented but that complainants who were represented by legal counsel were more likely to be successful than those who represented themselves; and
    • The complexity of the fact finding and legal argument in the Senyk case was beyond the realistic abilities of the typical complainant.

    The finding that a complainant is entitled to reimbursement of legal expenses has not been without significant controversy. This is because, based on the current wording of the Code, the Tribunal appears to have no authority to make similar awards in favour of successful respondents (including employers).

  7. Interest on amounts payable

    8. Where the Tribunal makes a monetary award in favour of the complainant, the complainant may be entitled to claim interest on the award. Pre-judgment interest is typically awarded on losses incurred prior to the hearing and is calculated from the date of the loss or expense. Post-judgment interest will apply to both expenses (including wage losses) and to the amounts awarded as "dignity damages".

  8. Costs

    9. Under section 37(4) of the Code, the Tribunal has the ability to make awards of costs in favour of either the complainant or respondent. However, such awards are made only as a punitive measure, punishing a party who has behaved improperly during the course of the complaint or who has breached certain rules of the Tribunal. Such awards can even made against a party who is ultimately successful with respect to the complaint if they have behaved improperly during the proceedings.

  9. Dismissal of the complaint

    10. Where the Tribunal concludes that the complaint is not justified, the Tribunal is required to dismissal the complaint. However, as noted above, the Tribunal has no ability to compensate the successful respondent for the legal costs it may have incurred in defending the complaint.

Conclusion

The broad wording of the Code gives the Tribunal significant powers to deal with findings of discrimination. Recent decisions of the Tribunal make clear that the Tribunal's authority to award remedies for discrimination contrary to the Code is an evolving one, creating significant financial risks for employers who are brought into the human rights process.

We welcome your comments and feedback. Please let us know what you think of this publication by emailing the editor Nicole Byres at nmb@cwilson.com