Transcript FAIRNESS AND GOOD FAITH OBLIGATIONS FOR CHRISTIAN …

MANAGING EMPLOYMENT
RELATIONSHIPS IN YOUR SCHOOL
WELL – LEGAL AND PRACTICAL
CONSIDERATIONS
CHRISTIAN SCHOOLS CANADA 3RD LEADERSHIP CONFERENCE
SEPTEMBER 21 -23, 2006
STAGE WEST HOTEL, MISSISSAUGA, ONTARIO
T. Charles De Jager
De Jager Volkenant & Company
Barristers & Solicitors
Suite 310 – 10362 King George Highway
Surrey, B.C., V3T 2W5
(604) 953-1502
[email protected]
www.dvclawyers.com
INTERVIEW AND HIRING
• Obtain resume including employment history
• Questions to ask
• Absenteeism and significant gaps in employment history
• Reasons for discipline or dismissal
• Check references and make inquiries with former employers
• A refusal to employ a person because of a mental or physical
disability, marital status or sexual orientation constitutes
discrimination under the Human Rights Code. Such conduct may be
defensible where the refusal is based on a “bona fide occupational
requirement” (BFOR)
• If the employer has important rules and policies and lifestyle
requirements, they should be discussed with the employee as well
as the consequences of breach of such requirements
THE EMPLOYMENT CONTRACT
• The contract should be in writing and it should be
reviewed, understood and signed by the employee
• The contract, rules and policies must comply with
Employment Standards Act requirements. The employer
should check to ensure that all sections of the Act apply
to the employee. The employer and employee cannot
contract out of these requirements. The Act deals with a
wide variety of employment matters including payroll
records, statutory holidays and termination. Particular
attention should be paid to the sections dealing with
pregnancy and parental leave, the calculation of vacation
pay and minimum notice obligations on a termination
IMPORTANT TERMS NATURE OF RELATIONSHIP
• Employee
• Agent
• Independent Contractor
IMPORTANT TERMS DUTIES
Duties, responsibilities and obligations of the employee
• Describe in detail. Describe any critical skills and
abilities the employee brings to the position. Set out
the specific duties assigned to the employee and his
or her reporting relationships
• Provide for an employer right to change duties or
reporting relationships and to require additional duties
as required from time to time
• Provide that the employee agrees to abide by
employer’s policies, rules and other requirements
IMPORTANT TERMS DURATION OF CONTRACT
• Definite period after which the
contract terminates
• Definite period with election to renew
contract
• Indefinite duration with termination
provision
IMPORTANT TERMS TERMINATION OF CONTRACT
•
•
•
•
By employee
Probationary period
Termination for cause. Define cause
Termination without cause with agreed on notice or pay
in lieu or a combination of notice and pay in lieu
Mitigation. Salary and benefit continuance
• Rights arising on termination
• Moneys owing by either party (e.g. loans, mortgages,
stock options)
• Return of property (e.g. organization automobile,
credit cards)
IMPORTANT TERMS LIFESTYLE REQUIREMENTS
• A requirement that the employee agree with,
abide by and carry out his or her duties in
accordance with the codes of conduct and
lifestyle rules and policies of the employer.
These requirements should be set out in or
attached to the contract of employment. The
employee should be asked to specifically review
them before signing the contract
IMPORTANT TERMS DEFINE CAUSE
• Cause for dismissal should be defined and
should include a breach of the rules,
policies, standards of conduct or lifestyle
requirements as well as an ongoing failure
to carry out material duties because of
illness or disability
IMPORTANT TERMS DISPUTE RESOLUTION
• A dispute resolution procedure
designed to deal with conflict at
every level (e.g. informal
meetings, mediation and
arbitration)
THE ONGOING EMPLOYMENT
RELATIONSHIP
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•
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Ensure that the annual review and evaluation process is followed and that
there is ongoing evaluation and feedback
Problems should be identified and dealt with as early as possible. Act only
after a proper investigation has been completed and the matter given due
consideration
Train and equip administrators and supervisors to deal with particular
problem areas (e.g. wage and benefit issues, sickness and disability and
lifestyle problems)
Document meetings and discussions with employees relating to such
problems
Request appropriate and required medical information where such problems
arise. Ensure that this information is kept in absolute confidence and is not
used for any reason other than that for which it was obtained
Consult with counsel early on in the matter
Ensure that employment practices comply with common law and
Employment Standards Act and Human Rights Code requirements
DISMISSAL – THE DECISION TO
DISMISS
The employment contract
• Subject to certain important common law and statutory
requirements, the terms of the contract will govern dismissal and
severance
• The contract may define cause for dismissal. Such clauses will
generally be interpreted in favour of employees. A dismissal for
contractual cause may still constitute discrimination under the
Human Rights Code
• The contract may set out notice and severance obligations. The
amount of the specified notice or severance must not be less than
the minimum requirements set out in the Employment Standards Act
• The contract may set out a process or procedure for dismissal
• The terms of the contract relating to dismissal and severance should
be strictly complied with
THE LEGAL RELATIONSHIP BETWEEN THE ORGANIZATION AND ITS EMPLOYEES
“The contract of employment has many characteristics that set it apart from
the ordinary commercial contract.... ‘the terms of the employment contract
rarely result from an exercise of free bargaining power in the way that the
paradigm commercial exchange between two traders does. Individual
employees on the whole lack both the bargaining power and the information
necessary to achieve more favourable contract provisions than those
offered by the employer, particularly with regard to tenure’. … This power
imbalance is not limited to the employment contract itself. Rather, it informs
virtually all facets of the employment relationship …. The relation between
an employer and an isolated employee or worker is typically a relation
between a bearer of power and one who is not a bearer of power. In its
inception it is an act of submission, in its operation it is a condition of
subordination …. This unequal balance of power led the majority of the
Court in Slaight Communications, supra, to describe employees as a
vulnerable group in society: see p. 1051. The vulnerability of employees is
underscored by the level of importance which our society attaches to
employment.”
Wallace v. United Grain Growers Limited, 1997, Supreme Court of Canada.
NATURAL JUSTICE
“It is now settled law that all administrative tribunals must provide
procedural fairness…. However, administrative tribunals are the masters of
their own procedures and, unlike courts, need not be shackled by all the
requirements of natural justice; rather, they are entitled to devise flexible
procedures adapted to their own needs in order to ‘achieve a certain
balance between the need for fairness, efficiency and predictability of
outcome” …. Thus, the duty of fairness is flexible and variable and will
depend upon an appreciation of the context of the statute involved and the
rights affected …. L’Heureux-Dube J. set out a non-exhaustive list of factors
that are relevant to the determination of the level of procedural fairness
required in particular cases. They include: (1) the nature of the decision and
its underlying procedures, that is, the degree of similarity of the
administrative process to the judicial process; (2) the role of the particular
decision in relation to the nature of the statutory scheme; (3) the importance
of the decision to the individuals affected by it; (4) the legitimate
expectations of the person challenging the decision where expectations
were created as to the procedure to be followed; and (5) the choice of
procedure made by the tribunal, as well as its expertise and its institutional
constraints.”
B.C. Securities Commission v. Pacific International Securities Inc., 2002, BC Court of Appeal
NATURAL JUSTICE
“The content of the principles of natural justice is
flexible and depends on the circumstances in
which the question arises. However, the most
basic requirements are that of notice,
opportunity to make representations, and an
unbiased tribunal.”
Lakeside Colony of Hutterian Brethren v. Hofer, 1992, Supreme Court of Canada
NATURAL JUSTICE
“ ‘What then is fair’? To a large extent the dictates of
fairness have come to be expressed in the concept of
natural justice and fairness of which there are two major
principles: the right to be heard (audi alteram partem)
and the right to be heard by someone who is listening,
that is to say the right to be heard by an unbiased
decision maker. Natural justice’s guaranty of a right to be
heard dictates that agencies must ensure that their
hearings provide parties with ample opportunity (a) to
know the case made against them; (b) to dispute, correct
or contradict anything which is prejudicial to their
positions; and (c) to present arguments and evidence
supporting their own case.”
Robert W. MacCaulay, Q.C., Hearings Before Administrative Tribunals, Carswell
NATURAL JUSTICE
In determining bias on the part of a decision maker it is
not necessary to prove that the decision-maker is
actually biased. The appearance of bias is sufficient. As
stated by Lord Goff in R. v. Gough, “Justice must not
only be done...it must manifestly be seen to done”. The
legal test for bias is whether or not an ordinary person
fully informed of the facts of the case at hand would find
a reasonable apprehension of bias. Bias may exist
where the decision-maker has a direct interest in the
outcome of the case or where he or she has prejudged
the issues or has had prior involvement in the subject
matter of the case.
COURT REVIEW OF DECISIONS OF PRIVAE
TRIBUNALS
“….the courts have been gradually moving from a policy of noninterference…to a reluctant willingness to exercise limited
supervisory jurisdiction …. The review by the court of orders made
by an unincorporated association is limited. The power in no way
includes the right in the court to substitute its decision for that of the
domestic tribunal. The court is not a court of appeal. Rather, its
power is narrow and it may only interfere if the order was made
without jurisdiction (or against the rules) or if it was made in bad faith
or contrary to the rules of natural justice. In addition, the courts will
be reluctant to interfere with the decisions of a domestic tribunal
where it is shown that internal remedies have not been exhausted.
And there is even greater reluctance to interfere if the decision is
based upon opinion regarding the standards of propriety and
conduct appropriate for members of a particular association.”
Peerless et al. v. BC School Sports, 1998, B.C. Court of Appeal
COURT REVIEW OF DECISIONS OF PRIVATE
TRIBUNALS
“I think we ought to take great care that this Court does not by successive decisions
usurp an authority in these cases for which there is no colour in point of law. In my
opinion there is some danger that the Courts will undertake to act as Courts of Appeal
against the decisions of members of clubs, whereas the Court has no right or
authority whatever to sit in appeal upon them at all. The only question which a Court
can properly consider is whether the members of the club, under such circumstances,
have acted ultra vires or not, and it seems to me the only questions which a Court
can properly entertain for that purpose are, whether anything has been done which is
contrary to natural justice, although it is within the rules of a club–in other words,
whether the rules of the club are contrary to natural justice; secondly, whether a
person who has not condoned the departure from them has been acted against
contrary to the rules of the club; and thirdly, whether the decision of the club has been
come to bona fide or not. Unless one of those charges can be made out by those
who come before the Court, the Court has no power to interfere with what has been
done....The Court has no right, in my opinion, to consider whether what was done
was right or not, or, even as a substantive question, whether what was decided was
reasonable or not.”
North Shore Independent School Society v. BC School Sports Society, 1999, B.C. Supreme Court
EMPLOYEES - CONTRACTUAL AND
STATUTORY PROCEDURAL FAIRNESS
The organization and employee may agree that the
contract of employment will contain terms that
provide for procedural fairness protection. For
example, the contract might provide that the
employee will receive written notice of performance
related concerns and be given an opportunity to
respond to same before any action or decision is
taken by the organization. Generally speaking, there
is limited statutory procedural fairness protection for
employees in Canada. There is some protection
afforded employees in this regard under the various
provincial Employment Standards legislation. For
example, in New Brunswick, the Act requires
employers to give reasons in writing when
dismissing employees for cause
A DUTY OF PROCEDURAL FAIRNESS IN THE DECISION
TO DISMISS
“The common law has traditionally not required the employer to give the employee
reasons for his or her dismissal …. Traditionally the common law has not required the
employer to provide that the employee a fair hearing when it intends to terminate his
or her livelihood unless one was a public office holder …. The courts have been
concerned that false cause allegations could affect the well-being and reputation of
employees. Because of this factor, many jurists have indicated that employers should
not make a decision to dismiss an employee for alleged misconduct without treating
the employee fairly and giving the employee an opportunity to be heard. It has been
held that a long-term employee is entitled to a fair hearing before irremediable action
is taken …. Failure to give an employee an opportunity to respond to the employer’s
concerns will militate in favour of the court finding that the employer acted
precipitously. As Sutherland J. stated, ‘not to accord a hearing is a perilous course
for the employer’. It may have the effect of encouraging the court to award punitive
damages or damages for mental distress against the employer. It is submitted that it
may additionally constitute strong evidence of bad faith on the part of the employer
…. However, a principle is developing that all employers may have a common law
obligation to give employees an opportunity to respond when allegations amount to
cause for dismissal. In two cases involving particularly ruthless terminations by the
same employer, it was further held that there was an onus on an employer
conducting an investigation to conduct a fair and full one.”
S.R. Ball, Canadian Employment Law, Canada Law Book Inc.
OTHERS – CONTRACTUAL AND
STATUTORY PROCEDURAL FAIRNESS
The Residential Tenancy Act and other
legislation (e.g. the Human Rights Code) provide
for significant procedural and substantive
fairness for tenants. The Act mandates the
essential terms of the tenancy agreement and
provides for the termination of tenancies and the
resolution of disputes in relation to same.
Subject to the Act and other applicable
legislation, a housing society may incorporate
into their tenancy agreements further terms that
provide for procedural and substantive fairness
CONTRACTUAL AND STATUTORY
SUBSTANTIVE FAIRNESS
The organization and employee may agree that the
contract of employment will obtain terms providing
for substantive fairness. For example, the contract
may provide that the parties will deal with each other
in “good faith”. Such terms are uncommon. There is
significant substantive fairness available today to
employees by way of statute. The various provincial
employment standards legislation provide a wide
range of protection around wages, holidays,
terminations etc. In addition the various provincial
human rights acts provide employees with very
significant protection in matters of discrimination
THE OBLIGATION OF GOOD FAITH AND FAIR DEALING ON
TERMINATION
“‘Work is one of the most fundamental aspects in a person’s life, providing
the individual with a means of financial support and, as importantly, a
contributory role in society. A person’s employment is an essential
component of his or her sense of identity, self-worth and emotional wellbeing.’ Thus, for most people, work is one of the defining features of their
lives. Accordingly, any change in a person’s employment status is bound to
have far-reaching repercussions.... ‘when this change is involuntary, the
extent of our personal dislocation is even greater.’ The point at which the
employment relationship ruptures is the time when the employee is most
vulnerable and hence, most in need of protection. In recognition of this
need, the law ought to encourage conduct that minimizes the damage and
dislocation (both economic and personal) that result from dismissal …. By
way of expanding upon this statement, I note that the loss of one’s job is
always a traumatic event. However, when termination is accompanied by
acts of bad faith in the manner of discharge, the results can be especially
devastating. In my opinion, to ensure that employees receive adequate
protection, employers ought to be held to an obligation of good faith and fair
dealing in the manner of dismissal, the breach of which will be compensated
for by adding to the length of the notice period.”
Wallace v. United Grain Growers Limited, 1997, Supreme Court of Canada
THE OBLIGATION OF GOOD FAITH AND FAIR DEALING ON
TERMINATION
“The obligation of good faith and fair dealing is incapable of precise
definition. However, at a minimum, I believe that in the course of
dismissal employers ought to be candid, reasonable, honest and
forthright with their employees and should refrain from engaging in
conduct that is unfair or is in bad faith by being, for example,
untruthful, misleading or unduly insensitive. In Trask, supra, an
employer maintained a wrongful accusation of involvement in a theft
and communicated this accusation to other potential employers of
the dismissed employee. Jivrag, supra, involved similar unfounded
accusations of theft combined with a refusal to provide a letter of
reference after the termination. …. In Corbin, supra, the New
Brunswick Court of Appeal expressed its displeasure over the
conduct of an employer who made the decision to fire the employee
when he was on disability leave, suffering from a major depression.”
Wallace v. United Grain Growers Limited, 1997, Supreme Court of Canada
NOTICE
In subsequent cases in BC the courts have awarded
increased notice on the basis of Wallace. The general
range for these increased notice awards is 2 to 6
months. In these cases the employee was required to
show that the manner of the dismissal caused mental
distress or an adverse affect on future employment
prospects. It has been suggested that such increased
notice does not adequately compensate the employee
for the harm done and that the courts should
compensate employees on the basis of an implied term
of fair dealing the breach of which gives rise to damages
distinct from notice (minority judgment in Wallace), tort
law (e.g. intentional infliction of nervous shock),
defamation and employment torts (e.g. bad faith
discharge)
THE CONTEXTUALIZED APPROACH TO JUST CAUSE DISMISSAL
“In light of the foregoing analysis, I am of the view that
whether an employer is justified in dismissing an
employee on the grounds of dishonesty is a question
that requires an assessment of the context of the alleged
misconduct. More specifically, the test is whether the
employee’s dishonesty gave rise to a breakdown in the
employment relationship. This test can be expressed in
different ways. One could say, for example, that just
cause for dismissal exists where the dishonesty violates
an essential condition of the employment contract,
breaches the faith inherent to the work relationship, or is
fundamentally or directly inconsistent with the
employee’s obligations to his or her employer.”
McKinley v. BC Tel et. al., 2001, Supreme Court of Canada
THE PROPORTIONALITY PRINCIPLE
“This is not to say that there cannot be lesser
sanctions for the less serious types of
misconduct…. Underlying the approach I
propose is the principle of proportionality. An
effective balance must be struck between the
severity of an employee’s misconduct and the
sanction imposed. The importance of this
balance is better understood by considering the
sense of identity and self-worth individuals
frequently derive from their employment,”
McKinley v. BC Tel et al., 2001, Supreme Court of Canada
THE NEXT STEP – EMPLOYMENT TORTS
“Thus, although the loss of a job is very often the cause of injured feelings and emotional upset, the law does not
recognize these as compensable losses. However, where an employee can establish that an employer engaged
in bad faith conduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment and
damage to one’s sense of self-worth and self-esteem might all be worthy of compensation depending upon the
circumstances of the case. In these situations, compensation does not flow from the fact of dismissal itself, but
rather from the manner in which the dismissal was effected by the employer. Often the intangible injuries caused
by bad faith conduct or unfair dealing on dismissal will lead to difficulties in finding alternative employment, a
tangible loss which the Court of Appeal rightly recognized as warranting an addition to the notice period.…. I
recognize that bad faith conduct which affects employment prospects may be worthy of considerable more
compensation than that which does not, but in both cases damage had resulted that should be compensable. The
availability of compensation for these types of injuries has been recognized in other areas of the law ….
Compensatory damages, in a case in which they are at large, may include several different kinds of compensation
to the injured plaintiff. They may include not only actual pecuniary loss and anticipated pecuniary loss or any
social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They
may also include the natural injury to this feelings - the natural grief and distress which he may have felt at having
been spoken of in defamatory terms, and if there has been any kind of high-handed, oppressive, insulting or
contumelious behavior by the defendant which increases the mental pain and suffering caused by the defamation
and may constitute injury to the plaintiff’s pride and self-confidence, those are proper elements to be taken into
account in a case where the damages are at large. …. In my view, there is no valid reason why the scope of
compensable injuries in defamation situations should not be equally recognized in the context of wrongful
dismissal from employment. The law should be mindful of the acute vulnerability of terminated employees and
ensure their protection by encouraging proper conduct and preventing all injurious losses which might flow from
acts of bad faith or unfair dealing on dismissal, both tangible and intangible. I note that there may be those who
would say that this approach imposes an onerous obligation on employers. I would respond simply by saying that
I fail to see how it can be onerous to treat people fairly, reasonably, and decently at a time of trauma and despair.
In my view, the reasonable person would expect such treatment. So should the law.”
Wallace v. United Grain Growers Limited, 1997, Supreme Court of Canada
THE NEXT STEP – EMPLOYMENT TORTS –
DUTY OF CARE
“There is a growing body of jurisprudence that employers now have a duty of care
when acting on conclusions that could have a devastating effect on an employee’s
career. In the decision of Conrad v. Household Financial Corp., the Nova Scotia
Court of Appeal dealt with a fact pattern where a dismissed employee was made a
scapegoat for poor performance of one of the employer’s offices. Although there was
no direct accusation, the employee was dismissed in a manner that people would
think the dismissal was for theft. The Nova Scotia Court of Appeal found a duty of
care outside and independent of the contract of employment. …. Wilson J. in
Kamloops (City) v. Neilson stated the Anns test for the duty of care as follows: (1) is
there a sufficiently close relationship between the parties... so that, in the reasonable
contemplation of the [defendant], carelessness on its part might cause damage to
that person? If so (2) are there any considerations which ought to negative or limit
(a) the scope of the duty and (b) the class of person to whom it is owed or (c) the
damages to which a breach of it may give rise? ….Given the policy goals of modern
employment law, as enunciated by the Supreme Court of Canada, the Ontario Court
(General Division) and the Nova Scotia Court of Appeal came to the right conclusion
in finding that employers had duties of care outside the traditional contract of
employment towards employees when dismissing them. There is no reason in
principle or policy why these duties cannot sound in tort.”
S.R. Ball, Canadian Employment Law, Canada Law Book Inc.
THE NEXT STEP – EMPLOYMENT TORTS –
BAD FAITH DISCHARGE
“It is submitted that common law jurisdictions ought to recognize a tort
action for bad faith discharge. If the courts are unwilling to recognize a new
nominate tort, they should recognize a new contractual action based on an
implied term of good faith and fair dealing, a term to be implied by law.
Ordinary employees owe their employers an obligation to serve faithfully
and have a common law duty of good faith. Equity imposes on some
employees even more onerous fiduciary obligations. If one of the purposes
of the law is as Blackstone says, to protect ‘the weak from the insults of the
stronger’, one would think that a reciprocal obligation would flow from
employers to employees. Although there is considerable evidence that the
law is now moving in this direction in Canada, some 200 years after
Blackstone’s Commentaries on the Laws of England, there is still no
generally recognized principle that employers have an implied obligation of
good faith and fair dealing …. The common law should recognize an
obligation of good faith and fair dealing owed by employers in all
employment relationships.”
S.R. Ball, Canadian Employment Law, Canada Law Book Inc.
DISMISSAL – REASONABLE NOTICE
• Where there is no cause, the employer is
entitled to dismiss the employee on reasonable
notice
• The purpose of the notice is to give the
employee time to look for another job
• Reasonable notice is calculated based on a
number of factors including character of
employment, length of service, age and the
availability of similar employment having regard
to the experience, training and qualifications of
the employee
DISMISSAL – REASONABLE NOTICE
• The Employment Standards Act sets out
the minimum notice required for a without
cause termination which ranges from 1
week after 3 consecutive months of
employment to a maximum of 8 weeks
• Generally, this notice is not adequate for
higher level staff
DISMISSAL - MITIGATION
• A terminated employee has an obligation
to reduce or mitigate his or her loss by
actively pursuing comparable, alternative
employment and his or her compensation
may be reduced to the extent that he or
she does not reasonably do so
DISMISSAL - DISCRIMINATION
• Dismissal of an employee for illness and disability or
lifestyle may constitute discrimination under the Human
Rights Code
• To establish a BFOR defence the employer must
establish that:
• It adopted the standard for a purpose rationally connected to the
performance of the job;
• It adopted the standard in the honest and good faith belief that it
was necessary to the fulfillment of the purpose; and
• The standard is reasonable necessary to the accomplishment of
the purpose in that it is impossible to accommodate the
employee without imposing undue hardship on the employer
DISMISSAL – SEVERANCE
PACKAGE
• The employer can dismiss on prior written reasonable
notice in which case the employee works over the notice
period
• In the case of a disabled or ill employee, termination by
way of appropriate working notice may be an important
way to reduce the significant exposure that employers
may face in such circumstances
• In many cases working notice is not desirable and a
more immediate dismissal without the necessary notice
is required. In such cases a severance package may be
offered to the employee
DISMISSAL – SEVERANCE
PACKAGE
• The employer may provide to the employee on
termination a lump sum payment in lieu of the notice that
the employee would have otherwise been entitled to
• In the event that the employee quickly finds alternate
employment, he or she may receive a windfall in such a
payment
• The employer may choose to offer a lump sum payment
that is less that the employee’s legal entitlement to
address this concern
• A portion of a lump sum payment may in appropriate
circumstances be paid into an RRSP as a retiring
allowance thus reducing tax that might otherwise be
payable by the employee
DISMISSAL – SEVERANCE
PACKAGE
•
•
•
•
•
•
As an alternative to lump sum severance, an employer may continue to pay
salary and provide some benefits to the employee for a specified period of
time
The ability of the employer to offer benefit continuance will depend on the
terms of the plan
In order to address mitigation earnings and the potential for a windfall to the
employee, most of these arrangements provide for reduction or termination
of the salary and benefits once the employee finds alternate employment
In some cases the employer will “top up” the income the employee receives
from his or her new employment over the salary continuance period
In other cases the employer will pay to an employee who has found
alternate employment 50% of the salary remaining to be paid over the
continuance period as an incentive for the employee to find alternate
employment
The employer may also provide to the employee a combination of lump sum
severance and salary and benefit continuance
DISMISSAL - REFERENCES
• The employer is not required by law to
provide a reference for a dismissed
employee
• The agreement to offer a reference can
however be a significant component of a
severance package
• Employers must provide references with
care and ensure that the information
provided is reasonably accurate
DISMISSAL - RELEASE
• A severance package should
contain a written legal release of
any claims that the employee may
have against the employer arising
as a result of the dismissal
A DUTY OF GOOD FAITH AND FAIR
DEALING FOR TENANTS
The Residential Tenancy Act provides that the
common law respecting landlord and tenant
applies to residential tenancies except as
modified or varied by the Act. The common law
of landlord and tenant in B.C. does not currently
provide for a general duty of good faith and fair
dealing at law between landlord and tenant. B.C.
courts may however find a duty of good faith
from the express terms of a contract or by
implication from the reasonable expectations of
the parties
A DUTY OF GOOD FAITH AND FAIR
DEALING FOR TENANTS
There is however case authority in Canada to support such a
general duty at law in the context of commercial tenancies. In the
Gateway Realty case in Nova Scotia the court recognized such a
duty as follows: “The law requires that parties to a contract exercise
their rights under that agreement honestly, fairly and in good faith.
This standard is breached when a party acts in a bad faith manner in
the performance of its rights and obligations under the
contract….The insistence on a good faith requirement in
discretionary conduct in contractual formation, performance, and
enforcement is only the fulfillment of the obligation of the courts to
do justice in the resolution of disputes between contending parties”.
Although the Gateway case is not the law in B.C., it is yet another
example of the courts in Canada moving towards imposing duties of
good faith and fair dealing on contracting parties where appropriate
THE CONFLICT RESOLUTION
CONTINUUM
• VIOLENCE
• LEGISLATION
• LITIGATION
• ARBITRATION
• CONCILIATION
• MEDIATION
• CONSENT
MEDIATION MODEL
•
•
•
•
Internal Solution
Interest-Based
Process Oriented
Relationally Sensitive
Pros
• fast and inexpensive
• open information
• limitless solutions
• open to interests
• positive on relationships
Cons
• needs willing parties
• Requires goodwill
ARBITRATION MODEL
FEATURES
• Imposed Solution
• Positional
• End-result Oriented
• Rights Oriented
Pros
• has force of law
• predictability
Cons
• hard to access - $/time
• selective information
• narrow range of solutions
• ignores interests
• ignores relationships
DISCUSSION AND QUESTIONS