PUBLICATIONS

Some of our recent publications include the following:

"Arbitral Jurisdiction over Tortious Privacy Violations" – June 18, 2010, Presented at the 2010 CLEBC Labour Relations Conference

Black Gropper Author/Presenters: Pamela Costanzo and Stephanie Mayor

This paper examines whether an arbitrator appointed under the Labour Relations Code would have jurisdiction to apply the BC Privacy Act, or award a remedy under it. It examines the historical development of the arbitral jurisprudence on breach of privacy. It also considers whether a common law tort of breach of privacy exists, and what alternative torts, and remedies, are available to plaintiffs who have experienced a breach of privacy in the context of employment.

"Employee’s Duty to Mitigate Damages for Wrongful or Constructive Dismissal Post-Evans v. Teamsters Local Union No. 31" – May 14, 2010, Presented at the 2010 CLEBC Employment Law Conference

Black Gropper Authors/Presenters: Shanti P. Reda and Stephanie T. Mayor

Other Authors/Presenters: James D. Kondopulos

This paper examines the impact of the Supreme Court of Canada’s decision in Evans v. Teamsters Local Union No. 31, [2008] S.C.J. No. 20 (“Evans”) on non-unionized employees’ duty to mitigate. Evans is a particularly important decision because of what it says about the application of the duty to mitigate in circumstances where a dismissing employer offers the employee a chance to mitigate his or her damages by returning to work with the employer. This paper discusses the majority and dissenting judgments of Evans, as well as how subsequent cases in B.C. and other Canadian jurisdictions have considered this decision.

"Timeliness Pursuant to Section 22 of the Human Rights Code" – November 5, 2009, Presented at the 2009 CLEBC Human Rights Conference

Black Gropper Author/Presenter: Shanti P. Reda
 

Other Authors/Presenters: Pamela A. Murray and Colin Galinski

This paper looks at the general approach of the BC Human Rights Tribunal to determining whether a complaint has been filed within the six month statutory deadline specified in Section 22(1) of the Human Rights Code, its approach to determining whether there has been a "continuing contravention" pursuant to Section 22(2) of the Human Rights Code and, if a complaint has been filed late, its approach to determining whether it should exercise its discretion to accept a late-filed complaint pursuant to Section 22(3) of the Human Rights Code (including a discussion of how the Tribunal defines and applies the concepts of "public interest," and "substantial prejudice"). This paper also discusses specific factors that may result in the Tribunal accepting an untimely complaint, including ongoing settlement discussions (and how the Tribunal approaches "without prejudice" communications that may have occurred as part of these discussions) or the complainant’s medical condition.
 

"Exclusions, Variances and Averaging Agreements under the Employment Standards Act", February 1, 2008, presented at a Lorman Educational Seminar.

Black Gropper Authors/Presenters: Shanti P. Reda

Part 1 of this paper discusses employees and other types of workers who are partially or totally excluded from the protections provided by the British Columbia Employment Standards Act (the "Act") and its associated Regulations. This includes: unionized employees, certain professionals, independent contractors, federally-regulated employees and managers. Part 2 of this paper discusses options available to employers and employees to voluntarily modify certain provisions of the Act that would otherwise apply to the employee(s), allowing for more flexibility in the workplace, including variances and averaging agreements.
 

"Advice to Unions and Employers Regarding Accommodation of 'Invisible' Disabilities", November 2007, presented at an Insight Information Conference.

Black Gropper Authors/Presenters: Allan E. Black, Q.C., S. Michelle Blendell, Jessica L. Burke and Pamela Costanzo
Other Contributing Authors/Presenters: Kim G. Thorne and Michael Kilgallin.

This paper examines the accommodation of addiction, mental health or other "invisible" disabilities, as well as the relationship between accommodation and disciplinary issues. This paper covers topics such as: an employee's duty to seek accommodation, an employee's duty to provide an employer with medical information, the employer's duty to investigate when it suspects that a disability may underpin an employee's performance issues, and the scope of an employer's duty to accommodate.

"Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer", August 2007, presented at the 2007 Employment Law CLE.

Black Gropper Authors/Presenters: Shanti P. Reda
Other Contributing Authors/Presenters: Suzanne M. Forestell

This paper focuses on non-unionized employees, and their common-law obligation to attempt to mitigate their damages. Part 1 of the paper provides a summary of the general principles of mitigation that apply when a non-unionized employee is terminated and is seeking pay in lieu of notice. Part 2 of the paper focuses specifically on an employee's duty to mitigate his/her losses by accepting a different job offer made by an employer during the course of a constructive dismissal. Part 3 of the paper focuses on an employee's duty to mitigate his/her losses by accepting an offer of re-employment made after a clear wrongful dismissal.
 

"The Ability, Obligations and Role of a Trade Union to Represent its Members in Employer Investigations", January 2007, presented at an Insight Information Conference.

Black Gropper Authors/Presenters: Allan E. Black, Q.C. and Pamela Costanzo.

This paper discusses the role of a trade union during employer investigations of a member(s). It discusses the rationale behind a union providing representation during an employer investigation, the law regarding whether an employee is entitled to be represented by his/her union during an employer investigation, and provides some tips to union representatives regarding the appropriate scope of their involvement. There is also a section focusing specifically on harassment investigations, where members may have competing interests.
 

"The Union's Duty of Fair Representation", 2006, Black Gropper Bulletin.

Black Gropper Authors/Presenters: Allan E. Black, Q.C. and Jessica L. Burke.

This is a useful Black Gropper bulletin that union clients can provide to their staff / worksite representatives, so as to inform those representatives about the duty of fair representation under Section 12 of the BC Labour Relations Code.
 

Disclaimer: Please note that these publications are provided for informational purposes only, and do not constitute legal advice. Furthermore, these publications are not updated and only provide information about the law as of the date of publication. Any individual seeking legal advice on the issues discussed in any of these publications should consult with a lawyer.