Here’s What BC Law Really Says—and What You Can Do If It Feels Wrong
By Tim Louis
“In British Columbia, your employer can schedule your vacation—but only if they follow certain rules.”
“What are my rights if my boss forces me to take time off in BC?”
It’s July in Vancouver. The sun’s finally out, business is picking up—and then, out of nowhere, your manager tells you:
“You’re taking next week off. We’ve scheduled your vacation.”
You blink. You didn’t ask for time off. You didn’t plan for this. And most of all—you weren’t ready.
Can your employer really force you to take vacation time in British Columbia?
The short answer: Sometimes—but not without rules.
Over my 40 years as an employment lawyer here in Vancouver, I’ve spoken with countless workers caught off guard like this. Retail staff. Servers. Hotel workers. Warehouse employees. And the story is always the same:
“I didn’t ask for vacation—but now I’m being told I’m off the schedule. What can I do?”
Here’s the good news: You have more rights than you think.
And if something doesn’t feel right, there’s a reason for that.
Whether your employer is suddenly assigning time off, reducing your hours, or pressuring you into “using up” vacation without notice—this article will help you understand what’s legal, what’s not, and what to do next.
Because your time matters. And your rights deserve to be respected.
People often ask:
“What are the vacation rules in British Columbia?”
“How much vacation do I get after one year in BC?”
Under the British Columbia Employment Standards Act, most employees are entitled to paid vacation time after 12 months of work with the same employer.
Here’s what the law says:
Vacation pay is calculated as a percentage of your total wages:
View the official BC Government guidelines here
Yes—but there are important limits.
Your employer in BC can schedule your vacation time, even if you didn’t request it. However, they must:
In short: employers can assign vacation—but they can’t abuse that power.
Insight from Tim:
“As an employment lawyer with over 40 years of experience, I’ve seen too many employers misuse this policy to quietly push employees out or manipulate scheduling. Vacation should never feel like punishment.”
– Tim Louis, Vancouver Employment Lawyer
“In BC, if your employer forces you to take time off without warning or fairness, it could violate your rights.”
Sometimes it’s not what your employer says—it’s how they do it.
If you’ve been told to take vacation and something feels off, trust that instinct. Below are five clear red flags that suggest your employer may be crossing the line.
Legal Concern: May breach the “reasonable notice” expectation.
If your employer drops a last-minute vacation decision on you, it could violate employment standards—even if you’ve earned the time.
You should be given a fair heads-up so you can actually plan and benefit from your time off—not just disappear from the schedule.
Legal Concern: Possible discrimination or retaliation.
Are other employees unaffected? Are you the only one being “forced” into time off during slow periods?
This could point to deeper issues—like targeting, unfair discipline, or subtle workplace punishment.
Legal Concern: Could signal a constructive dismissal pattern.
If you spoke up, raised a concern, or clashed with management—and suddenly your time off appears out of nowhere—this could be part of a bigger issue.
Forced vacation should never be used as a pressure tactic or punishment.
Legal Concern: Likely unlawful.
Vacation is supposed to be paid time off. If your employer says, “we can’t pay you but we’ll call it vacation,” it’s likely a breach of BC’s employment law.
Don’t let your legal entitlements be erased with vague terms.
Legal Concern: Lack of transparency = Risk Signal.
If your manager or HR team can’t clearly tell you why the time off was scheduled, or they give conflicting answers—take that as a warning sign.
This confusion is often used to discourage pushback—but clarity is your legal right.
Tim’s Advice:
“When forced vacation is used inconsistently or without reason, it’s not just bad management—it could be a violation of your rights under BC law.”
“What should I do if I’m being forced to take vacation in BC?”
If something about your forced vacation doesn’t sit right, trust your instincts.
Here’s what you can do—right now—to protect your rights and prepare for next steps:
If they’re assigning vacation time you haven’t accrued, that’s a red flag.
Clear communication forces accountability. Silence often signals trouble.
Tim’s Advice:
“I encourage every client to keep a paper trail. It strengthens your case if things escalate.”
You may have grounds for a constructive dismissal claim or a compensation case.
But the outcome depends on how you handle things in the moment.
If you’re unsure about your vacation rights this summer—or feel like something isn’t quite right—we’ve created a simple, powerful resource just for you.
Download: Your Employment Rights Guide
This free, mobile-friendly PDF includes:
What You’ll Get:
“It’s quick, clear, and designed for BC workers like you.”
“When should I call a lawyer about forced time off in BC?”
Sometimes the biggest red flag is your own gut feeling. If you’re being told to take time off that you didn’t ask for—especially if it’s unpaid, sudden, or feels like retaliation—it might be time to talk to someone.
Here are some common situations where speaking to an employment lawyer like Tim Louis is not only smart—it may protect your income, reputation, and peace of mind:
If this isn’t the first time your schedule or vacation has been changed without warning, it could show a pattern of abuse—especially in retail, food service, or shift-based work environments.
This is one of the most common—and most dangerous—forms of manipulation. Employers may try to call it “vacation” or “flex time,” but under BC law, vacation is paid. If you’re told to take unpaid time off, seek help immediately.
Some employers will quietly force employees into difficult, confusing positions—hoping they’ll resign. If your “forced vacation” feels like a step toward the door, don’t walk out… speak out.
Tim’s Final Word
“I’ve represented workers in BC for over 40 years, and I can tell you: when something doesn’t feel right, it’s worth speaking up. You deserve to be treated fairly—and the law is here to protect you.”
— Tim Louis, Vancouver Employment Lawyer
Can my employer force me to take vacation time in BC?
Yes, but only under specific conditions.
Your employer in BC can schedule your vacation time, but they must provide reasonable notice and cannot do so in a way that’s discriminatory, retaliatory, or unfair.
How much paid vacation am I entitled to in BC?
If you’ve worked 12 consecutive months, you’re entitled to 2 weeks of paid vacation.
After 5 years, you’re entitled to 3 weeks. Vacation pay is calculated at 4% to 6% of your gross wages, depending on your tenure.
Is my employer allowed to schedule my vacation without asking me?
Yes, employers can choose vacation timing—but they must act in good faith. If the vacation is last-minute, feels like punishment, or targets you unfairly, you may have grounds to take legal action.
What if I’m told to take “unpaid time off” instead of vacation?
That’s likely unlawful.
Vacation in BC is paid by law. If you’re being forced to take time off without pay and without a formal vacation record, speak to a lawyer.
Could forced vacation be considered constructive dismissal?
Yes.
If your vacation is used as a form of pressure, retaliation, or is paired with reduced hours or job instability, it may form part of a constructive dismissal case. Documentation is key.
What should I do if I think my rights are being violated?
✔ Yes, employers can schedule vacation—but only with notice and fairness.
✔ Forced, unpaid time off is likely unlawful.
✔ You are entitled to vacation pay—minimum 4% of earnings after 12 months.
✔ If your vacation feels like punishment or retaliation, it could be constructive dismissal.
✔ Keep records, request written explanations, and speak up if something feels off.
Your time is legally protected. Don’t let an unfair policy put your income or peace of mind at risk.
If you’re worried that your employer is abusing vacation scheduling policies, pressuring you to quit, or quietly cutting your hours—don’t guess. Get expert advice from one of Vancouver’s most trusted employment lawyers.
“I’ve helped thousands of workers in BC stand up to unfair treatment over my 40+ year career. If you’re being pushed around at work, I’m here to help.”
— Tim Louis, Vancouver Employment Lawyer
Free Consultation Options:
⭐ ⭐ ⭐ ⭐ ⭐ “Tim’s advice was concise and candid which helped me to make a quick decision on the first step for my employment issue. Thank you Tim! I highly recommend Tim Louis ＆ law firm.”
— Grant Kuo, Google Review
Explore trusted resources to protect your rights—whether you’re dealing with forced vacation, unpaid leave, or pressure at work.
Employment Law in Vancouver – Tim Louis & Company
An overview of your rights as an employee in BC—and how we can help if your employer crosses the line.
https://timlouislaw.com/employment-lawyer-vancouver/
Constructive Dismissal: Know Your Rights
Learn when a job change becomes illegal and what to do if your employer forces you out.
https://timlouislaw.com/constructive-dismissal-understanding-your-rights-as-an-employee/
Wrongful Dismissal in Vancouver
If you’ve been let go unfairly, this guide explains what severance and compensation you may be entitled to.
https://timlouislaw.com/wrongful-dismissal-vancouver-bc/
Employee Rights FAQ – Tim Louis Law
Plain-language answers to BC’s most common workplace questions—from scheduling to severance.
https://timlouislaw.com/faq-hub/
Contact Tim Louis & Company
Speak directly with our team. Maya, our friendly assistant, is ready 24/7 to help you start the conversation.
https://timlouislaw.com/contact-us/
Vacation & Vacation Pay – BC Employment Standards
Official rules about vacation time in BC: who qualifies, how it’s calculated, and what employers must do.
https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/time-off/vacation
Employment Standards Act – Full Legislation (BC Laws)
The full legal text of BC’s employment law—ideal for verifying your rights word-for-word.
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96113_01
Constructive Dismissal – Government of Canada
Clear federal guidance on what constructive dismissal means—and how to prove it.
https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html
People’s Law School – Worker Rights in BC
Trusted, free legal education that breaks down BC employment laws in everyday language.
https://www.peopleslawschool.ca/
Retail Action Network – Worker Advocacy & Support
A grassroots organization helping retail and hospitality workers stand up to unfair scheduling and employer pressure.
https://workersolidarity.ca/about/
Denied LTD in BC? Here’s What Happens Next By Long-Term Disability Lawyer Tim Louis Being denied long-term disability can feel like losing your footing twice: once to illness, and again to disbelief. In British Columbia, you still have rights, and you still have time to act. When an insurer tells
Fired Without Cause in BC? Here’s What Happens Next By Vancouver Employment Lawyer Tim Louis Losing your job can feel like the ground dropped out from under you. In British Columbia, the law gives you real protections and time to breathe before you sign anything. You may be shocked, confused,
by Tim Louis
Imagine this: An employee who has worked hard for years suddenly faces a chronic illness or an injury that limits their ability to perform their usual duties. They want to continue working, and they can—with a few reasonable adjustments. But what happens when an employer isn’t sure what their legal obligations are? What if they fear making accommodations will be too costly or disruptive?
This is where the duty to accommodate comes into play.
For employers in Vancouver, the duty to accommodate isn’t just about being compassionate—it’s a legal requirement under the BC Human Rights Code. The law mandates that employers must take reasonable steps to adjust workplace conditions so that employees with disabilities can continue to work without discrimination.
But here’s the catch: This duty isn’t limitless. Employers are only required to accommodate up to the point of “undue hardship”—a legal threshold that considers factors like financial cost, workplace safety, and business operations. Understanding where accommodation ends, and undue hardship begins is critical for both employers and employees.
For employees, knowing their rights means they don’t have to suffer in silence. If an employer fails to accommodate, it could be grounds for a human rights complaint or even legal action. For businesses, understanding this duty protects them from legal risks and helps create a more inclusive, productive workplace.
At its core, the duty to accommodate is about fairness, balance, and legal compliance. It ensures that employees with disabilities are not unfairly excluded from the workforce, while also recognizing that businesses have practical limitations.
So, how do Vancouver employers ensure they’re meeting their obligations? And what exactly qualifies as undue hardship? Let’s break it down.
The duty to accommodate isn’t just a moral obligation—it’s a legal requirement in British Columbia. Employers have a responsibility to ensure that employees with disabilities can continue working, provided the necessary adjustments don’t create undue hardship. Understanding the legal framework behind this duty is critical for both employers and employees navigating workplace accommodations.
Under the BC Human Rights Code, employers must take reasonable steps to adjust working conditions, policies, or job duties to accommodate employees with disabilities. This duty applies to all workplaces in British Columbia, regardless of the size of the business or the industry.
The goal of accommodation is to level the playing field, ensuring that employees with disabilities are not unfairly disadvantaged. This can include:
Employers must assess each situation individually, as what works for one employee may not be suitable for another. Importantly, accommodations should be made collaboratively, with input from the employee, employer, and medical professionals where necessary.
Failure to accommodate can lead to human rights complaints, legal action, and reputational damage. The BC Human Rights Tribunal frequently hears cases where employees allege discrimination due to a failure to accommodate, and many of these cases result in significant financial penalties for employers.
The duty to accommodate is not absolute. Employers are only required to accommodate up to the point of undue hardship. But what does that mean in practice?
Undue hardship occurs when the accommodation would cause significant difficulty or expense for the employer. However, the bar for proving undue hardship is high. The BC Human Rights Tribunal requires clear evidence that the accommodation would cause major disruption. The most common factors considered include:
The burden of proof lies with the employer. Simply claiming that an accommodation is inconvenient, costly, or difficult is not enough—there must be clear evidence that the requested changes would create a genuine hardship.
Most accommodations do not meet this threshold. In many cases, adjustments are low-cost and manageable, yet some employers resist change simply due to lack of awareness or reluctance to adapt. Understanding the legal limits of undue hardship helps ensure that employees receive the accommodations they are entitled to, while also protecting businesses from unfounded claims.
So, what role does medical evidence play in workplace accommodations? And how can employees and employers work together to find reasonable solutions? Let’s take a closer look.
When an employee requests accommodation due to a disability, medical evidence often plays a crucial role in determining what adjustments are reasonable. Employers are not expected to take every request at face value—they have the right to request relevant medical documentation to ensure that accommodations align with legitimate medical needs. However, employees also have the right to privacy and dignity, meaning employers cannot demand unnecessary personal medical details.
Medical documentation provides objective validation of an employee’s condition and limitations. It helps employers:
For employees, providing clear and detailed medical documentation can strengthen their accommodation request and prevent delays in the process.
Employers cannot demand an employee’s full medical history or diagnosis, but they can request information that is directly related to the accommodation request. This typically includes:
Employers should approach these requests with sensitivity, ensuring they are asking only for information that is necessary and relevant.
Unfortunately, disagreements can arise when:
In these cases, open communication is key. Employers and employees should work together to clarify expectations and, if needed, seek a second medical opinion. In extreme cases, legal intervention or mediation may be required to resolve disputes.
To ensure compliance with the BC Human Rights Code, employers should:
Medical evidence should never be used as a barrier to workplace inclusion—it is a tool to help both employers and employees find fair and practical solutions.
So how can employers and employees collaborate effectively to implement accommodations in a way that benefits both parties? Let’s explore this in the next section.
The duty to accommodate is not just a legal requirement—it’s a shared responsibility between employers and employees. The most successful accommodations are collaborative, ensuring that both parties work together to find solutions that are reasonable, practical, and beneficial for everyone involved.
Employees are in the best position to understand their own needs. While medical documentation provides an overview of limitations, it’s the employee who experiences the challenges firsthand. Actively involving them in the accommodation process ensures that:
When an employer imposes accommodations without considering the employee’s input, the adjustments may be ineffective or even counterproductive. Open discussions help identify realistic solutions that maintain productivity without causing undue hardship.
This employee-led approach creates a collaborative atmosphere, making it easier to find workable solutions.
Accommodation plans should be fluid—what works today may need adjustment in the future.
A supportive workplace culture encourages employees to voice their concerns early, preventing unnecessary disputes.
Workplaces that prioritize education and awareness create a more inclusive and legally compliant environment.
A written agreement does not need to be complex—it can be a simple summary of what was discussed and agreed upon.
When accommodation is handled proactively and collaboratively, both employees and employers benefit. Employees retain their jobs, experience less stress, and feel valued. Employers avoid legal risks, retain skilled workers, and foster a more inclusive workplace.
Accommodations are not about lowering standards—they’re about removing barriers so that employees with disabilities can contribute effectively.
So, what happens if an employer fails to accommodate or if a dispute arises over what is considered reasonable? Let’s explore the legal implications next.
The duty to accommodate is not just a best practice—it’s a legal obligation. When employers fail to accommodate an employee with a disability, they risk serious legal consequences, including human rights complaints, financial penalties, and damage to their reputation.
Understanding these consequences is essential for both employers and employees, as it reinforces the importance of handling accommodation requests fairly and legally.
In British Columbia, employees are protected under the BC Human Rights Code, which prohibits discrimination in the workplace based on disability. This means that employers must accommodate employees with disabilities to the point of undue hardship.
Failing to do so can lead to a human rights complaint, which may be filed with the BC Human Rights Tribunal. If the Tribunal determines that an employer has failed in their duty to accommodate, significant consequences can follow.
When an employee believes they have been discriminated against due to a failure to accommodate, they can file a complaint with the BC Human Rights Tribunal. If the Tribunal finds that the employer failed in their legal duty, they may order:
If an employer terminates an employee instead of making reasonable accommodations, the employee may file a wrongful dismissal claim. Courts have ruled that failing to accommodate an employee before terminating them is a violation of employment law, and employers may be ordered to:
Employers found guilty of discrimination can face substantial financial penalties. In some cases, the BC Human Rights Tribunal has awarded employees tens of thousands of dollars in compensation for lost wages and emotional harm.
For example, in past cases, employers who failed to accommodate employees with chronic pain conditions, mobility impairments, or mental health disabilities were ordered to pay significant damages due to their failure to meet legal obligations.
A human rights complaint or legal action can cause irreversible damage to an employer’s reputation. In today’s digital world, public tribunal decisions and lawsuits are often highly visible, leading to negative publicity that can impact customer trust, employee retention, and business operations.
If an employer refuses to accommodate a disability, employees have legal options:
✅ Communicate in Writing – If an employer denies accommodation, employees should request a written explanation and clarify what information may be needed to support the request.
✅ Seek Legal Advice – A disability lawyer, such as Tim Louis & Company, can assess the situation and advise on next steps.
✅ File a Human Rights Complaint – If discrimination has occurred, employees can file a complaint with the BC Human Rights Tribunal. Complaints must typically be filed within one year of the alleged discrimination.
✅ Consider a Workplace Grievance or Union Action – Unionized employees may also have grievance procedures under their collective agreement.
To stay compliant with the BC Human Rights Code and avoid legal action, employers should:
Failing to accommodate an employee with a disability isn’t just a legal risk—it’s a failure of workplace inclusivity. Accommodations allow skilled, dedicated employees to continue contributing, benefiting both the individual and the organization.
For employers, the key takeaway is simple: Accommodation is not just a legal checkbox—it’s an investment in a stronger, fairer, and legally compliant workplace.
For employees, understanding their rights ensures they are not left without options if an employer refuses to accommodate them.
If you are an employer seeking guidance on accommodation policies or an employee facing a denial of your accommodation request, Tim Louis & Company can help. Contact us today for trusted legal advice.
Navigating workplace accommodations can be complex and overwhelming, whether you’re an employer trying to comply with the law or an employee facing resistance to your accommodation request. The key to avoiding legal disputes and ensuring fairness is to understand your rights and obligations—and that’s where expert legal guidance can make all the difference.
If you’re an employee, we can help you:
✔ Understand your legal rights when requesting accommodations
✔ Challenge an employer’s denial of accommodation
✔ File a human rights complaint if necessary, ensuring you receive fair treatment
At Tim Louis & Company, we have been helping employees and employers navigate workplace accommodation laws for over 40 years. Our team is committed to protecting your rights, ensuring fair treatment, and guiding you through every step of the process.
📞 Call us at (604) 732-7678
📧 Email: timlouis@timlouislaw.com
🌐 Visit us online: www.timlouislaw.com
📍 Tim Louis and Company – 2526 West 5th Ave, Vancouver, BC V6K 1T1
Don’t wait until a situation escalates. Get expert legal advice today and take control of your workplace accommodation rights.
Employers in Vancouver are legally required under the BC Human Rights Code to accommodate employees with disabilities to the point of undue hardship. This includes making reasonable adjustments to job duties, work schedules, or the workplace environment to ensure fair treatment.
Undue hardship refers to the point at which an employer can no longer reasonably accommodate an employee’s disability due to excessive cost, health and safety concerns, or significant operational disruption. Employers must provide clear evidence if claiming undue hardship.
An employer cannot refuse an accommodation request unless they can prove that fulfilling it would cause undue hardship. If an employer denies a request without proper justification, the employee may file a human rights complaint with the BC Human Rights Tribunal.
Common workplace accommodations include:
Yes, an employer can request medical documentation to confirm the need for accommodation. However, they cannot ask for unnecessary personal medical details. The information should focus on functional limitations and the type of accommodation required.
If an employer refuses a reasonable accommodation request, the employee should:
Failure to accommodate can result in:
Employers should act as soon as possible once a request is made. The time frame depends on the complexity of the accommodation, but delaying without valid justification can be seen as a failure to accommodate, leading to legal consequences.
No. Terminating an employee instead of accommodating them is considered disability discrimination and can result in a wrongful dismissal claim. Employers must first explore all reasonable accommodations before considering termination.
Employers can prevent legal disputes by:
Denied LTD in BC? Here’s What Happens Next By Long-Term Disability Lawyer Tim Louis Being denied long-term disability can feel like losing your footing twice: once to illness, and again to disbelief. In British Columbia, you still have rights, and you still have time to act. When an insurer tells
Fired Without Cause in BC? Here’s What Happens Next By Vancouver Employment Lawyer Tim Louis Losing your job can feel like the ground dropped out from under you. In British Columbia, the law gives you real protections and time to breathe before you sign anything. You may be shocked, confused,
If you’ve been terminated by your employer, or just want a clear understanding of your rights when it comes to wrongful dismissal law in BC, you’ve come to the right place.
We always encourage employees to seek advice from an experienced legal team that specializes in employment law; however, we also like to educate our clients so they become more familiar with key terms to gain a broad understanding of laws surrounding wrongful dismissal claims.
A wrongful dismissal occurs when an employee is terminated by their employer without being provided any reasonable notice.
Generally, there are 3 types of wrongful dismissal scenarios:
If you are an employee in BC, your rights are protected by both the Employment Standards Act of British Columbia and federal law — however, it is important to note that a wrongful dismissal claim does not occur simply because an employer has terminated an employee for an illegitimate reason. For example, an employer may have terminated an employee for financial reasons, when in fact there is no basis for doing so.
An employer does not legally have to be completely honest with their reasons for termination, as long as they have just cause to terminate or provide reasonable notice of termination or salary in lieu of notice.
The notice period an employee is entitled to will vary depending on these factors:
Under Canadian law, an employer can legally apply just cause termination in the event of serious employee misconduct such as theft, sexual harassment, dishonesty, conflict of interest, incompetence, insubordination, and other types of highly inappropriate conduct during employment. Some “just cause” actions are easier for an employer to prove than others.
Under these circumstances, an employer can terminate an employee immediately without any requirement to provide:
The first thing you will want to do is prove that you were an employee of the company.
Generally, this can be done by providing:
Moving forward, your employer must prove that you were dismissed for ‘just cause.’
When you are terminated, your employer may offer you an exit agreement and or offer you a severance package to sign off on, with a short deadline. If you feel you have been wrongly dismissed, do not sign a severance offer before speaking to an employment lawyer. Your employer cannot legally impose a deadline on your full severance entitlements.
Legally you have 2 years following termination to receive your severance pay — if you sign off on a severance package from your employer, you have also signed away your right to pursue legal action for severance pay under common law.
To file a claim under the B.C. Employment Standards Act, you have 6 months from the termination date. To sue your employer, you have 2 years from the date you were let go. This goes for employees who work full-time, part-time, or an employee on probation
If you feel you may have been wrongfully dismissed, it is important to obtain legal advice as early as possible. If you or someone you know has experienced a wrongful dismissal, Tim Louis Law is here to help. We are on your side and will fight hard to ensure that our clients receive full compensation. For more information or to set up a free consultation with Tim Louis & his compassionate, trusted team of experts, call 604-732-7678 or email timlouis@timlouislaw.com
Source: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96113_01
A recent BC Court of Appeal case, Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 [Tanious], gives disability insurance claimants who take their insurers to court greater prospects of obtaining special costs against their insurer, even absent malicious conduct. However, the specific details of the case are very important. This article analyses Tanious with a view to determining the key requirements that will need to be met in future cases to obtain awards of special costs. Leave to appeal Tanious to the Supreme Court of Canada was denied.
Ms. Tanious was diagnosed with multiple sclerosis shortly before beginning a new job. She nonetheless worked at that job for seven years before ceasing work and claiming disability benefits that she was entitled to through her employment. Following her diagnosis, she developed depression and anxiety, and about a year before ceasing work she started using illicit methamphetamines to cope with her deteriorating cognitive capabilities. The insurer, Empire Life, denied that she became disabled during her employment, and further argued that her substance use disentitled her to benefits. At trial, Mr. Justice N. Brown found that she was entitled to disability benefits, and further awarded her $15,000 for aggravated damages for mental distress, loss of peace of mind and of dignity as a person from Empire Life’s refusal to pay benefits.
At the subsequent costs hearing, Brown J. awarded special costs even though the plaintiff conceded that Empire Life did not commit any litigation misconduct. It is this award that was subject to appeal.
The costs scheme in British Columbia is statutory; Rule 14-1 of the Supreme Court Civil Rules sets out the framework for cost awards. It provides that the court may award special costs, but does not set out the circumstances in which they may be awarded. Generally, special costs are only awarded in cases where there has been litigation misconduct. However, there are exceptions, though these are rarely applied. The Tanious case is an example of one such exception.
In order to justify a special costs award, the Court of Appeal stated that it is insufficient to simply have a large discrepancy between taxable costs and actual legal costs. There must be some other “unusual feature” in the case, such as “special importance, difficulty or complexity associated with the litigation” (para. 54). The Court cited a handful of examples where special costs had been awarded despite the lack of evidence of misconduct, and explicitly reiterated that in these cases any award of special costs must be made on a principled basis.
Typically, the objectives of costs awards are to provide the winning party with some degree of indemnity for the costs it has incurred during the litigation. However, the Court of Appeal also recognized that costs awards “encourage settlement, deter frivolous actions or defences and sanction unreasonable conduct committed in the course of litigation” (para. 36). Significantly, the Court also indicated that in some instances, “costs may be awarded to enhance access to justice, mitigate severe inequality between litigants and encourage socially desirable conduct” (para. 36).
The Court cited the leading case of Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 465, which provides that in the context of these objectives, “the application of ordinary costs rules usually produces a just result,” but goes on to say that this does not mean “that the personal and financial circumstances of a litigant can never be relevant on a costs application” (para. 60). The Court acknowledged that such circumstances may come in to play in exceptional cases.
The Court went on to discuss other cases where special costs were “justified in the interests of justice” (para. 65). Given the circular nature of this proposal – that special costs awards are justified by justice – it is challenging to elucidate principled reasons for these awards when they are not related to reprehensible conduct. Instead, these cases are fact-specific and must be considered based on their own merits.
The Court included in its analysis two analogous cases out of the Court of Queen’s Bench in Alberta where special costs were awarded: Hennessy v. Horse Racing Alberta, 2007 ABQB 178, where a judicial review was required to defend the appellant’s livelihood and restore his reputation; and Meleshko v. Alberta, 2013 ABQB 468, where the appellant sought judicial review to reinstate long-term disability benefits, and punitive damages were not available. As well, the Court cited FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd., 2016 ABCA 303 for the proposition that special costs could be awarded if success in the litigation would otherwise “amount to a strictly pyrrhic victory” (para. 65).
The final significant case referenced in the appeal was Carter v. Canada (Attorney General), 2015 SCC 5, wherein the test for awarding special costs was refined by the Supreme Court of Canada, stating that “the plaintiffs must show that it would not have been possible to pursue the litigation with private funding” (para. 63). In these instances, it is not just to ask the individual litigants or their counsel to bear the cost of pursuing the claim.
On its face, the trial judge in Tanious made the decision to award special costs on the basis of very few factors, none of which are unusual in a long term disability insurance case: the purpose of the insurance contract is to provide subsistence level income, and when the insurer failed to pay these benefits, the plaintiff had to bring a lawsuit, which cost money. However, the Court of Appeal recognized that when the trial judge’s reasons were read as a whole, it was apparent that he also considered “the nature of the case, including its unique characteristics and related litigation challenges, complexities and costs, together with Ms. Tanious’ personal and financial circumstances and her need for counsel as established by the evidence” (para. 21).
The particular litigation challenges of this case included several factors that added to the effort required by counsel. Ms. Tanious was a difficult client to represent. She could not meet at counsel’s office; counsel had to drive to her. Similarly, she could not review documents to prepare for an examination for discovery as it was too stressful, and she likely would not be able to remember what she had reviewed. Additionally, she attended hospital 33 times over the course of the case, and often called her counsel from hospital to ask for help with various other issues. Ms. Tanious attempted suicide more than once as her disease progressed; if she had died, her claim for benefits would have ended. In preparing for this case, it was difficult for counsel to predict what Ms. Tanious would say at trial.
Though the insurer did not commit misconduct, it could have acted better. The trial judge noted that the insurer made only a cursory response to Ms. Tanious’ initial application for disability benefits, but once in litigation, mounted a vigorous defence. In combination with Ms. Tanious’ poor mental health and declining cognitive abilities, the actions taken by the insurer necessitated that she obtain legal representation in order to pursue the benefits to which she was entitled.
Notably, Ms. Tanious had separate counsel for the costs hearing. This was perhaps because her original counsel had to testify at the hearing via affidavit as to the many special circumstances in Ms. Tanious’ case; s. 5.2-1 of the Code of Professional Conduct precludes counsel from testifying to controversial matters. Though it was not mentioned by the Court, as a practical matter, this ethical rule adds to the challenges of obtaining special costs.
The courts now recognize that in matters of insurance disputes and also in other exceptional situations, many people do not have access to justice unless they are able to retain counsel. Access to justice is recognized as being one of the policy objectives of the courts that thus far is not adequately being met (para. 81). As the consequences of these shortcomings become clearer, it may be possible to seek special costs as a means of ensuring adequate access to justice for members of otherwise underrepresented and vulnerable populations.
It can be difficult to make a financially viable practice taking long term disability cases to trial. While aggravated damages are sometimes awarded, they are typically small awards that are woefully insufficient in comparison to the costs of litigation. Punitive damages require misconduct on the part of the insurer. The risk of a special cost award, absent litigation misconduct, provides the plaintiff with more leverage in negotiations with an insurer, and may allow a plaintiff to recuperate the full benefits to which they are entitled, while also appropriately compensating their counsel.
When an employee is terminated without cause, it means they are dismissed for reasons other than workplace misconduct or breach of contract, which would, in that case, be defined as ‘termination with just cause.’
Oftentimes termination without cause occurs during times of economic downturn or when a company is trying to cut costs or chooses to engage in restructuring or realignment. As long as the reason for the termination or lay-off is not discriminatory, such actions are completely legal.
If your employer follows the employment law, and manages the termination correctly, including giving you reasonable notice of termination, meaning notice or pay in lieu of notice, you will have sufficient time to seek other means of employment or at least be compensated financially for your loss of work.
If the employer does not follow the correct legal procedures, a wrongful dismissal case may result, which means it would be time for you to seek the services of an employment lawyer to make a claim for compensation.
Payment due is dependent on the duration of your employment at the company. Nevertheless, the following minimum statutory requirements apply:
At common law, you are entitled to substantially more than under statute law. Each case is different depending on age and skill set. Generally speaking, you are entitled to between 4-6 weeks of severance pay per year of employment. However, your employer can deduct from this amount any income you earn during this period of time. Even if you earn no money during this time, the court will make a deduction if you failed to make reasonable efforts to look for employment.
Pay is not required when terminated without cause if reasonable notice is provided. Under common law, reasonable notice is based on length of service, the age of the employee, type of position and the availability of similar employment at the time of termination.
Under these guidelines, the reasonable notice might amount to at least one month per year of service. This may also be specified in your original employment contract. However, even though your contract may require less notice of termination than common law requirements, it cannot be less than the entitlements listed under the BC Employment Standards Act.
As long as these requirements are met, no payment is necessary in termination without cause cases.
Pay or notice is not required in the following circumstances:
The reasonable notice and compensation laws governing termination are clear. All employers and even employees should understand them; otherwise, the laws might be breached, and unfair dismissal cases result, which calls for court action.
If you were terminated without proper notice or pay and wish to file a wrongful dismissal claim, contact us at Tim Louis and Company. Our experienced Vancouver employment lawyer will evaluate your case and guide you through the process.
In employment law, constructive dismissal takes place when an employee resigns due to unwanted changes to fundamental terms of their employment contract, or due to the employer creating a hostile work environment.
Despite no actual firing taking place, the conduct of the employer would have to be of such a scale and scope that the employee is at liberty to regard himself or herself as having been dismissed. In other words, since the resignation was not truly voluntary, effectively, it is considered a dismissal.
Constructive dismissal is, however, often harder to prove than many employees tend to think. The responsibility of proving constructive dismissal rests solely on the employee, who must first provide the requisite evidence to prove that a fundamental breach of contract was committed by the employer, whilst the employer’s only requirement would be to prove that the resignation was not forced.
Among the circumstances which may constitute a breach of contract and enable an employee to leave and claim constructive dismissal are:
Once the employer breaches a fundamental term, under the law, he or she is in breach of the whole contract. The employee is entitled, therefore, to accept the repudiation, thus bringing the contract to an end and thereafter sue the employer for damages.
In order to change a contractual term, both employer and employee have to agree to the new terms, as new terms imposed without agreement and consideration may be unenforceable and may also destroy the entire contract.
There are two types of constructive dismissal. In the first, it must be determined that the employer has implicitly or explicitly breached a term of the employment agreement. Thereafter, it must be determined whether or not the breach was of a magnitude that substantially altered the employment relationship.
The second type of constructive dismissal occurs if the employer’s conduct has shown that he or she intends to no longer be bound by the employment agreement. In this case, there may be a series of smaller breaches of the employment contract by the employer or no actual breach. However, the court may examine the employer’s cumulative treatment of the employee to determine if it demonstrates an intention to no longer be bound by the contract.
In proving constructive dismissal, not only is time is of the essence, but the conduct of the employee after the unfair act takes place is also critical. Due to the fact that when an employer imposes new fundamental terms to which the employee does not agree, the employee can be considered constructively dismissed, the employee must withdraw quickly as continuing to work under the new terms may indicate the employee’s acceptance or condone of the change.
At that point, the law will prevent the employee from making any claim for constructive dismissal.
If you believe you were the victim of constructive dismissal and are searching for an employment lawyer in Vancouver, contact us at Tim Louis and Company.
Our Vancouver employment lawyer would be pleased to assist with your case on a contingency basis. Call us today to schedule a consultation.
If you have recently been fired or terminated from your job and your boss had no valid reason for doing so, that could fall under a wrongful dismissal, where you probably already know that your employer must pay you damages. This payment is in lieu of your employer giving you reasonable notice in cases of firing without just cause. As a general rule of thumb, the amount is equivalent to the salary or wages you would have received with termination with reasonable notice — anywhere between four weeks at the low end and six weeks at the high end for each year of employment.
Where this can get complicated is if you were earning tips or gratuities in addition to your salary or wage while working somewhere like a bar or restaurant. If you’re like most people in such a line of work, you probably don’t declare all or most of your tips on your income tax return. The question is, in such a situation, is your employee liable to you not only for your base wages, but also for the tips you would have earned during the notice period? And, if your employer is liable for these tips, who calculates that amount — your employer or you?
The B.C. Supreme Court considered these questions, and the judgment is great news for people who earn part of their income from tips.
Sarah Chapple, a restaurant manager, took her employer, Umberto Management Inc., to court. In January 2007, she was dismissed after having worked for the defendant for more than 13 years.
The trial judge ruled that Umberto Management should have given Ms. Chapple 15 months’ notice, and therefore she was entitled to 15 months’ pay. As well, the trial judge went on to award her more than $70,000 for the tips she would have earned during the notice period, despite the fact she did not claim all of her gratuities on her income tax, nor did she or the defendant keep records of her tips.
The defendant appealed the trial judge’s decision. Firstly, Umberto Management alleged that they did have good reason to terminate her in the first place. Therefore, no notice was required. In the alternative, they argued that not only was 15 months’ notice excessive but the award of over $70,000 for tips was excessive, too.
The B.C. Court of Appeal rejected the defendant’s appeal on all grounds.
What does all this mean? If you have been recently terminated without cause by your employer and you earned tips or gratuities, the law is now firmly on your side.
If you have not been paid wages by your employer, you may be trying to decide whether to sue or, instead, to file a complaint with the Employment Standards Branch under the Employment Standards Act. Before you decide which route to take, you may wish to get advice from an employment or labor lawyer. This is especially important after a recent Small Claims Court decision.
The Small Claims Court recently considered the case of an employee who had not been paid wages by his employer. At Small Claims, this employee did not have a lawyer – he represented himself. I am disappointed to tell you that the employer succeeded in having the case dismissed.
The employer drew the Court’s attention to Section 82 of the Employment Standards Act. This section requires the employee to obtain the consent of the Director of Employment Standards to take the employer to Court if the dispute has already been ruled on by the Employment Standard’s Branch. In this case, the employee had already taken the dispute to the Employment Standards Branch. The employee was successful but could only get an order for six months worth of back wages because the Employment Standards Act limits claims for unpaid wages to a six-month maximum.
In this case, the employee was owed back wages beyond six months.
After his success at the Employment Standards Branch, the employee sued in Small Claims Court for the back wages not covered by the six month limit.
The employee did not get permission from the Director of the Employment Standards Branch. The Small Claims Court Judges accepted the employer’s argument that the case must therefore be dismissed.
Hindsight is 20:20. but in this case, the employee would have been better off just suing in Small Claims Court for the entire claim of unpaid wages.
If you have not been paid by your employer, you may wish to consider seeking the advice of an employment/labor lawyer before deciding what to do. Call Vancouver wrongful dismissal lawyer Tim Louis today at (604) 732-7678.
You have just been asked by your boss to carry out a new procedure he thinks will be much better than the current procedure. However, your boss does not have the hands-on experience you do and you know from past experience that every time he comes up with a new procedure he thinks will be much better, it turns out more often than not, his new procedure is not practical.
If you decide not to carry out your employer’s latest new idea, and you are fired, can you successfully sue for wrongful dismissal if you can demonstrate to the Court that your employer’s new idea was not going to work?
As an employment lawyer, I am frequently asked for advice from clients in situations similar to the above. These clients want to know if they will be able to successfully sue their employer for wrongful dismissal/wrongful termination if they are fired after refusing to carry out their employer’s directions.
Surprisingly, the law is not on the side of the employee in cases where an employer’s directive is intentionally disregarded – even if the employee had good reason to believe the directive was a poor management decision.
Our B.C. Court of Appeal recently heard an appeal of a Trial Judge’s decision. The Trial Judge had dismissed a wrongful dismissal/termination lawsuit brought on by a senior manager, against his employer, after he was fired.
The B.C. Court of Appeal, in dismissing the senior manager’s appeal, thoroughly reviewed the law and referred to many longstanding cases. In summary, the Court concluded that, unless the employer’s direction is illegal, dishonest or would risk the employee’s safety, the employee must follow the direction. To do otherwise gives the employer grounds to terminate the employee with cause. The result is that a lawsuit by the terminated employee will fail.
You might think you are making the right decision in not carrying out the employer’s instruction but unless you are being asked to do something illegal, dishonest or something that will put your safety at risk, you run the risk of losing your job and not being able to sue. If you are thinking of refusing to follow your employer’s instruction, make sure to speak with an employment or labor lawyer first.
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ABOUT VANCOUVER, BC BASED LAW FIRM SPECIALIZING IN LONG-TERM DISABILITY, PERSONAL INJURY, EMPLOYMENT LAW AND ESTATE LITIGATION.
At the law firm of Tim Louis and Company, we are committed to helping people through difficult times. Starting with a free consultation, we help people who need it most to get the compensation they deserve. Our practice includes Long-Term Disability, Personal Injury, Employment Law and Estate Litigation. With over four decades of experience, Tim Louis has helped people across British Columbia get legal help when they need it most.
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By Tim Louis
By Tim Louis