Articles:

1. Employers, Think Twice Before You Send That Offer Email – Learnings from Thinkific Labs
2. York Region District School Board v. Elementary Teachers’ Federation of Ontario – Case Summary
3. B.C. Government’s ‘Delivers’ for Online Platform Workers

Employers, Think Twice Before You Send That Offer Email – Learnings from Thinkific Labs 

Sherry Yu

In its recent decision of Adams v Thinkific Labs, the British Columbia Supreme Court once again highlighted the dangers to employers of presenting terms or conditions of employment outside of, and particularly before, a written employment contract.

Although it is often common practice for employers to make an offer of employment before sending an employment contract for signature, employers must be careful not to ‘split’ presentation of the proposed terms and conditions of employment in separate documents or across multiple interactions with the successful candidate. Making offers of employment in such a ‘multi-step’ fashion runs the significant risk that an employment contract signed at the end of this process will be invalidated by lack of consideration or by prior agreement between the parties, in writing or otherwise.          

Background

In Thinkific Labs, the plaintiff was terminated from her employment on a without cause basis and was provided with her associated entitlements, including termination notice, in accordance with the terms of a written employment contract (the “Agreement”), which the plaintiff had signed one month before she commenced work. Notwithstanding that the Agreement contained an explicit termination provision limiting the plaintiff’s entitlements upon termination, the plaintiff sued for wrongful dismissal and claimed damages for reasonable notice under the common law.

The key issue for determination in this case was whether the Agreement was valid, and therefore whether the termination provision contained therein precluded the plaintiff from establishing a claim for common law notice. The plaintiff’s argument rested on the fact that just hours prior to being sent the Agreement, the plaintiff had received an email offer of employment (the “Offer Email”) from the defendant containing details and documentation regarding: compensation; stock options and vesting; a health or personal spending account; bonus entitlements; a learning and development stipend; leave and vacation entitlements; work schedule details; and extensive brochure materials regarding various benefit plans. As reported in the decision, the Offer Email contained “approximately 60 pages of information, some involving specific policies of the defendant and others relating to the extensive health and other benefits related to employment with the defendant.”

Notably, the Offer Email did not contain any details or documentation regarding termination notice or any other rights or obligations upon termination – the termination provision appeared only in the Agreement, which also contained a non-competition clause in the event of termination. The decision pointed out that the Agreement “contained almost nothing save for additional burdens, limitations and obligations on the plaintiff—none of which had been addressed or even mentioned in the original 60 plus pages of offer of employment.”        

The Decision

On review of the evidence, the Court, in a rather strongly-worded decision, found in favour of the plaintiff, accepting her argument that the termination provision contained in the Agreement did not apply because the Agreement was invalid for lack of consideration – the defendant’s “consideration” of offered employment had already been spent when it sent, and the plaintiff accepted, the Offer Email detailing the various rights and benefits available to the plaintiff in employment with the defendant. At paragraph 33 of the decision, the Court found that:

The Letter or Letter Agreement clearly imposed new and burdensome terms on the plaintiff, different in all aspects from the terms which had been presented and offered to induce her to accept employment from the defendant. Nothing of the sort had been included in, or even hinted at in the initial offer. The initial terms were not general discussion points in a meeting or interview; they consisted of over 60 pages of all-encompassing, detailed and clear inducements, amassed, collated and presented by the defendant to the plaintiff in their offer to her to join the defendant company.

Ultimately, the Court, in preferring the evidence of the plaintiff on quantum of damages, ordered a reasonable notice period of five months. Note, however, that the plaintiff received only limited recovery of her legal costs because the amount recovered was within the monetary jurisdiction of the Small Claims Court (and therefore her claim should have been brought as a Small Claims Court claim).

Key Takeaways for Employers

Thinkific Labs confirms that the essential element of contract formation – consideration – remains a common pitfall of the hiring process, and a potential bar to an employer’s ability to rely upon termination provisions contained in an employment contract. In order to preserve their rights and entitlements under an employment contract, employers should take care to ensure that all important terms and conditions of employment are contained in the initial contract and that as much as practicable the contract is sent to the successful candidate concurrently with offer being made. Failing to do so may result in a decision-maker finding that the employment contract is invalid for lack of consideration (because the employee had already accepted employment on another set of terms, prior to signing the contract).      

If you have any questions or concerns about your organization’s hiring process, please contact a Mathews Dinsdale lawyer.

 

York Region District School Board v. Elementary Teachers’ Federation of Ontario – Case Summary

Ernest Tam

Overview

In York Region District School Board v. Elementary Teachers’ Federation of Ontario, the Supreme Court of Canada determined that public school boards in Ontario are subject to the Charter as they operate within the framework of the provincial government and, therefore, school board employees such teachers are protected against unreasonable search and seizure under section 8 of the Charter. The Supreme Court also confirmed that administrative decision makers (e.g. arbitrators) are empowered to, and should, proactively conduct a Charter analysis where a claimant’s constitutional rights are relevant based upon the facts of the grievance before them.

Background

Two teachers recorded workplace concerns on a personal, password-protected online log stored in the cloud of their personal email accounts. The school principal was aware of this log and entered one of the teacher’s classroom, accessed that teacher’s work laptop, scrolled through the documents and took screenshots of the log with his cellphone. This online log formed the basis for written reprimands imposed upon the two teachers.

The Elementary Teachers’ Federation of Ontario grieved the discipline, claiming that the search violated the grievors’ right to privacy at work, without alleging a breach of the Charter. The arbitrator ultimately dismissed the grievance, determining that there was no breach of the teachers’ reasonable expectation of privacy when balanced against the school board’s management rights.

Divisional Court decision

On judicial review in the Divisional Court, the majority concluded that the arbitrator’s finding was reasonable in accordance with s.265 of the Education Act, given the “apparently toxic work environment” allegedly caused by the Grievors and because the search had “no criminal element” to it. The majority also determined that the arbitrator interpreted and applied privacy jurisprudence reasonably.

Court of Appeal decision

The decision was appealed to the Court of Appeal, which unanimously allowed the appeal and quashed the arbitrator’s decision. The Court of Appeal held that the arbitrator erred in interpreting and applying section 8 of the Charter, and reached an unreasonable decision in dismissing the grievance. The Court of Appeal ultimately determined that the arbitrator erred in applying the law concerning the Grievors’ section 8 Charter rights and in any event, reached an unreasonable decision.

Supreme Court of Canada decision
On appeal to the Supreme Court, the three main issues were:

1. Does the Charter apply to public school boards in Ontario?
2. What is the appropriate standard of review for the arbitrator’s decision?
3. Should the arbitrator’s award be set aside for failing to conduct an analysis under section 8 of the Charter?

On the first issue, Supreme Court determined that Ontario public school boards are subject to the Charter as public education is “inherently a governmental function” and therefore school boards are part of the “government” for the purposes of section 32 of the Charter. Consequently, Ontario school board employees enjoy rights under section 8 of the Charter against unreasonable search and seizure in the workplace. However, the Supreme Court noted that its analysis specifically related to Ontario public school boards, and indicated that the applicability of the Charter to public school boards in other provinces, and private schools, has yet to be determined. 

On the second issue, the Supreme Court unanimously held that the question of whether the Charter applies to Ontario public school boards was subject to review on a correctness standard. However, the Supreme Court was split on the appropriate standard of review on the question of whether the grievors’ privacy rights had been breached. The majority opinion determined that the arbitrator’s decision was reviewable on a correctness standard as it was a “constitutional question” that required “a final and determinate answer from the courts”. Conversely, the minority opinion viewed the issue of whether the grievors’ privacy rights had been breached as one that heavily depended on the specific factual and statutory context, which was therefore subject to review on a reasonableness standard.

Ultimately, both the majority and minority opinions held that the arbitrator’s decision should be set aside. The majority concluded  that the arbitrator should have proactively conducted a section 8 assessment, as the issue “manifested itself on the facts of the grievance.” The concurring opinion stated that the arbitrator’s conclusion that the log was insufficiently connected to the grievors’ biographical core did not reasonably reflect the grievor’s privacy rights as the reasonable expectation of privacy did not depend on what the log actually contained, but rather the potential for the search to reveal information touching upon their biographical core.

Concluding Remarks

Particularly in light of this decision, school boards and other broader public sector employers should be alert when their actions have potential to impact an employee’s Charter rights, especially their privacy rights. This includes searches of workplace computers and other employer property, and the issuance of any discipline relating to the results of such searches. Employers should obtain the necessary legal advice prior to engaging in any conduct that may compromise an employee’s Charter rights to ensure that their actions will be defensible in the event of a grievance or other challenge.

 

B.C. Government’s ‘Delivers’ for Online Platform Workers

Jakob Sanderson

Courts and legislators alike have been scrambling to determine how best to deal with the rising ‘gig’ economy, along with the treatment of those who perform work for leading online vendors. But the B.C. Government has now taken the most aggressive step of any body in Canada: as of September 3, 2024, online platform drivers, commonly referred to as ‘gig’ workers, are now entitled to a suite of employee rights under the British Columbia Employment Standards Act [ (the “Act”). This article will break down what’s changed, what hasn’t, and what it means for employers.

Who is Included?

Under the British Columbia Employment Standards Regulation, B.C. Reg. 396/95 (the “Regulations”), online platform workers affected by the recent legislation are defined as those performing “work for the purpose of picking up and delivering an applicable online order” from a seller to a customer, or “work for the purpose of transporting one or more passengers whose transportation is ordered through a ride-hailing online platform.” This may primarily affect, but is not necessarily limited to, ride-sharing and delivery drivers, such as those working for Uber, Lyft, DoorDash, Uber Eats, or other similar vendors.

Are Gig Workers Employees Now?

Yes… and no. The legislation amends the Act to include “online platform workers” as employees, but the Regulation sets out various exclusions. Online platform workers are not entitled to annual  vacation or vacation pay, overtime pay, and are not granted statutory holidays. They are also not provided paid leave entitlements, though they retain a right to all unpaid leaves afforded under the Act. Outside of the sections prescribed, online platform workers are entitled to all protections, rights, and benefits afforded to employees under the Act.

Changes Specific to Online Platform Workers

In addition to the general inclusion under the Act discussed above, online platform workers now have a set of rights and protections specific to them, including:

• A minimum wage of $20.88: under the Regulation, online platform workers will be guaranteed a minimum wage equal to 120 percent of B.C.’s provincial minimum wage, which will increase proportionately moving forward.
  • This wage applies only to engaged time, which begins when a worker accepts and assignment and continues until the assignment is completed. It does not include time between jobs.
  • Vendors must determine whether workers’ cumulative pay on all assignments within a pay period is equal or greater to the minimum wage. If not, it is required to “top up” the vendor’s payment until their pay for the period is equal to the minimum wage.

• Online platform workers are entitled to notice of termination, in line with that afforded to all employees under the Act, and must be provided with written reasons in the event that a vendor permanently suspends their access to the platform (i.e. terminates the worker).
  • In the event of a temporary suspension, workers must receive 72 hours’ notice with specific reasons for the suspension, and the worker must either have engaged in serious misconduct, or their continued access to the platform would pose an immediate health and safety risk.
• Online platform workers must be provided information regarding the pick up and drop off location, and amount payable to the worker, prior to accepting an assignment.
• Workers must be paid a distance expense allowance of $0.35 per kilometre for delivery services, and $0.45 per kilometre for ride-hailing services, and that allowance must be paid out within 8 days of each pay period.
• On each payday, vendors must provide a wage statement, which states the vendor’s name and address, and outlines for each pay period; the number of hours worked, the distance travelled and the applicable allowance rate, the total earnings, any “top up” required, the total amount of gratuities paid, all applicable deductions, and the net amount paid to the worker.

A full-list of legislative changes related to online platform workers can be found here.

Key Takeaways for Employers

The first takeaway is that this legislation may not only affect Uber, Doordash and their ilk. Any employer who contracts with workers to “pick up” and “deliver” an “online order” from a “seller” to a “customer,” may be subject to these legislative changes, depending upon the elements of its contracts with its workers.

If an employer is subject to the legislation, it must immediately:

• Establish organizational infrastructure to provide the required information to its workers before an assignment is accepted, and during each pay period;
• Pay applicable workers the prescribed minimum wage;
• Update its contracts and policies to reflect the applicable termination, suspension, and leave requirements; and
• Update all policies and practices to otherwise ensure compliance with the changes to the Regulations and the Act.

In addition to the above, employers will no doubt have to consider organizational changes to compensate for the inevitable increased labour and administrative costs, which will create significant challenges.

If you have any questions regarding whether these legislative changes apply to you, and what you need to do to comply if they do so apply, please contract a Mathews Dinsdale Employment Lawyer.

 

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.