Welcome Sarah Reid

Velletta Pedersen Christie is pleased to announce that Sarah Reid has joined our firm as an immigration lawyer.

Sarah is experienced in  immigration and citizenship applications, as well as the Refugee Protection Division and Immigration and Refugee Board.

As an experienced immigration lawyer, Sarah can assist with:

To book an immigration consultation with Sarah, she is best booked online at immigration.victorialaw.ca

Victoria Immigration Lawyer

Sarah is fluent in Korean.  She is active in the legal community, including as vice-chair of the Canadian Bar Association's Immigration Law Victoria section, and is a representative in Victoria of the Federation of Asian Canadian Lawyers.

 

While the province of Ontario has amended their Employment Standards legislation to ban non-competition clauses as of October, 2021, non-competition clauses are still legal according to British Columbia employment law.

However, courts take a strict approach to these clauses, requiring parties that seek to rely on a non-competition clause to draft their clause carefully, and with reasonable terms.

A non-compete clause effectively restricts the activities that an employee can carry out – even when they are no longer employed at all or being paid.  It is for this reason that courts are wary to enforce non-compete clauses, unless they are drafted carefully so as not to be unduly restrictive or unfair.

While employment law is essentially the law of contract, the special nature of the employment relationship means that the courts and law makers pay special attention to ensure there is an appropriate balance between the rights of employees and the requirements of employers.

In one of the leading Canadian cases on restrictive covenants, Elsley v. J.G. Collins Insurance Agencies Ltd., the Supreme Court of Canada wrote that the “public interest” must be considered when deciding whether such a clause is enforceable:

A covenant in restraint of trade is enforceable only if it is reasonable between the parties and with reference to the public interest. As in many of the cases which come before the courts, competing demands must be weighed. There is an important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants. On the other hand, the courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power.

In deciding whether it is in the public interest to enforce a restrictive covenant, the courts will consider:

  1. The nature of the employer’s interest, and whether it is entitled to protection;
  2. The temporal and spatial restrictions on the employee; and
  3. Whether the clause prevents the employee from competing generally, or whether it is limited to preventing solicitation of the employer’s business.

Generally, the courts will be more likely to enforce a “non-solicitation” clause, which precludes the employee from soliciting the employer’s business, than it will a non-compete clause, which restricts the employee generally from competing.  Courts will also pay special attention to the scope of the clause – a clause that is limited to a specific geographical area, and is limited for a reasonable period of time, is more likely to be enforced.

Employers seeking to include a non-compete clause in their contract ought to seek legal advice from an employment lawyer before doing so.  Because these clauses are subject to challenge in the courts, careful drafting is required.

 

A Cautionary Note

This article provides only an overview of an employment law topic and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

According to the BC Employment Standards Act, an employee who is terminated without cause is entitled to severance pay or a period of notice based on their years of service.  The Act specifically provides that Employees in their first three months of employment can be terminated with or without cause at any time, and without severance.  Most employers consider this to be a three month probation period during which the Employee’s suitability for continued employment will be assessed.

 

In addition, many employers will include a probationary period of a similar nature into a written employment contract.  Although such a provision will typically be enforceable, it will not give the employer carte blanche to fire at will.  The law in British Columbia has developed so as to place an obligation on the employer who terminates during a probation period to do so in good faith.  In the recent case of Ly v. British Columbia (Interior Health Authority), the BC Supreme Court set out requirements placed on an employer who chooses to terminate during a period of probation.  In tis case, the plaintiff was hired in a managerial role and was terminated after approximately two months of employment.  The court set out the following factors to be considered in determining whether the termination was made in good faith.

 

1)      whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment;

2)      whether the employer acted fairly and with reasonable diligence in assessing suitability;

3)      whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and

4)      whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability.

 

In this case, even though the employee was terminated during the probationary period, the court found that they were entitled to reasonable notice damages because the employer had not provided the employee with a fair opportunity to demonstrate their suitability.

 

Before terminating an employee during a probationary period, it is important that the employer turn their mind to the above principles, as failure to do so could result in a court award made against the employer.  Similarly, for employees, the mere fact that the termination took place during a probationary period will not necessarily bar a claim for reasonable notice damages.

Should you need any assistance with this area, or have further questions, please contact us. We are here to help you navigate tricky situations such as these ones and get you the best possible outcome.

Earlier this month, the Court of Appeal released its decision in Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 .  In that case, the court considered the availability of uninsured motorist benefits pursuant to section 20 of the Insurance (Vehicle) Act.

In British Columbia, all motorists are required to carry at least a minimum amount of third party liability insurance.  This means that when someone is injured as a result of a negligently operated motor vehicle, the injured party can almost always count on a pool of funding to be available from which they may recover an award of damages.  Section 20 of the Insurance (Vehicle) Act essentially acts as a failsafe in our mandatory insurance regime – for those rare cases where the motorist is uninsured, the injured party may make a claim for Section 20 benefits to fill in the gap where recovery from the negligent motorist is not possible.  However, as this case shows, Section 20 benefits have their own limitations to be aware of.

Section 91 of the Insurance (Vehicle) Act limits recovery in certain cases:

Limitation on recovery in relation to stolen vehicles

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.

(2) Despite the Negligence Act and section 100 of this Act,

(b) a person referred to in subsection (1) is not entitled to any recovery from the corporation under section 20.

Essentially, an injured party is barred from making a section 20 claim if they were a passenger in a vehicle that they knew, or ought to have known was being operated without the owner’s consent.  In this case, ICBC was successful in arguing that the plaintiff was not entitled to section 20 benefits.  At the time of the accident, she was 17 years old, and was a passenger in a vehicle driven by a 15-year-old.  At trial, the judge found that because of the plaintiff’s young age, she couldn’t have turned her mind to whether or not the vehicle was driven without consent, and therefore she was not barred from recovering pursuant to section 20.

The Court of Appeal disagreed, and found that a reasonable person in the plaintiff’s circumstances ought to have known that the vehicle was driven without consent.

This is an important case, as it clarifies the test to be followed when considering the section 91 exception.  The court is to follow an objective approach, considering what a reasonable person in the plaintiff’s circumstances ought to know, as a opposed to the subjective approach employed by the trial judge.

 

Hi, my name is Eric Pedersen I'm a lawyer for Velletta and Company practicing employment law. Today we're going to talk about another employment law topic which is constructive dismissal. Now the constructive dismissal is really just a fancy way to say, "I quit" to your employer to also at the same time exercise and enforce all of the rights that you would have if you were an employee who was fired without cause.

The general rule of thumb in British Columbia is that an employee who quits their position isn't going to be entitled to any severance pay or any notice they're walking away from the job and that's on them. But constructive dismissal is a very specific category in the law that allows an employee who quits to bring a claim against the employer for severance. The idea is that although the employer hasn't fired the employee they have by their conduct in the way that they might have changed the employee's workplace duties changed their employment. Such to the point that they've pretty much been fired and have all of the rights of a fired employee.

Not every minor change that an employer might make to an employee's employment contractor to their workplace will result in an employee having the rights of a constructively dismissed employee. A really obvious example would be if you were a CEO one day and then you showed up the next day you were demoted to janitor. Well you haven't been fired but you have pretty much been fired.

So you have all of this same rights to claim for severance as an employee who was fired but not all cases are black and white. And there's a lot of grey area. It's important that you do consult a lawyer before exercising the option of constructive dismissal.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company's civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal. His practice is focussed primarily on the following areas: Personal injury and motor vehicle claims, Employment and Human Rights Law, Commercial litigation, Real estate litigation, General insurance litigation, Disability insurance litigation and General civil litigation.

Our professional Eric Pedersen is well-versed in employment law. In this video, Eric covered the topic of wrongful dismissal and what to do if you think you have been wrongfully dismissed at your place of work.

 

 

Hi my name, is Eric Pedersen and I'm a lawyer practicing employment law at Velletta & Company. Today I'm going to talk to you about one topic in employment law which is wrongful dismissal. There are a lot of misconceptions about what a wrongful dismissal is and the way to think about it is a wrongful dismissal is a firing or a termination where the employer fails to get the proper amount of notice. Or severance.

The reality is that employer is permitted in British Columbia to fire anybody at any time. For almost any reason as long as they give them the proper amount of severance pay or notice. There is one major footnote to that which is B.C Human Rights Code. There are 13 protected grounds in the human rights code that you can't base a dismissal on. Those are things like age, gender, gender expression, race, religion and country of origin and so on.

But back to the reasons for dismissal: it doesn’t actually matter. It doesn't really factor into any court's decision (unless the employer is alleging that they have cause to fire you), why the employer might have terminated you. They are allowed to terminate you for the dumbest reasons at all! It may be that you remind them of their fourth-grade school teacher or you just rub them the wrong way or you're not a good fit. What matters is that you're given the proper amount of severance pay. Severance pay or pay in lieu of notice. We're going to be talking in a bit in another video as to what the proper amount of severance that an employee can expect termination is. All terminations are a difficult process. And it's often important to know your rights before signing off on the release or if your employer before terminating an employee for any reason. Always get legal advice.

As family, separation, and divorce lawyers, working with clients on the breakdown of a relationship is what we do. This is one of the biggest events in most people’s life; right up there with death and taxes.

The process part is surprisingly the most essential to all of this. No matter how luring it may be to think that you can just download a fill in the blank agreement, you can’t. Just like organic food, it’s not the apple that is organic but the entire process: it is the seed, soil, nutrients, harvest, handling and delivery that has it travel to your plate.

Likewise, a Separation Agreement is not just words and paper or an electronic product that puts the appropriate checks in the boxes. Here we will go over the nuts and bolts considerations but also give an explanation of the process that will set you up for an independent future.

NUTS AND BOLTS

Separation Agreements are similar to all agreements between two people in an intimate relationship, be it marriage, cohabitation or even wills. However, they are far different than all other contracts you might enter into. Here is what is typically required:

THE PROCESS EXPLAINED

All professionals who deal with family breakdown, separation, divorce and matrimonial discord understand that there are complex realities and personal circumstances behind every relationship coming to an end. This is where the process comes into play.  The process is often the part that is put under a microscope when looking backward to see if it was fair. Unless you fairly negotiated, shared information, had proper understanding on your side and can demonstrate that those items took place; you may be in trouble.

Now the reason that people have a contract or Separation Agreement is to ensure that their agreement is enforceable, fair and valid. Alternatives to a formal Separation Agreement include minutes of settlement, consent orders or orders after trial are almost always more costly than a Separation Agreement which will cost an average of $2,500 to $10,000.

Compare that to going to court to resolve family issues or having a bad agreement set aside and you will each be looking at $5,000 to over $100,000 in legal fees.

Essentially, a Separation Agreement and its terms should become intertwined with your respective lives and, if done correctly, neither party will need to change it. In appropriate circumstances, a review clause can be incorporated in various topic areas. This sounds tough, right? We all change, seemingly all the time. So how does one agreement accommodate all those changes?

This is where we will work with you to ensure that you understand what is in a Separation Agreement. You will know specifically what is meant by each term and what rights and obligations are being provided to you. Equally and often overlooked at first are the rights and obligations that you may be giving away with the Separation Agreement and without careful planning, they may be lost forever. This is an essential point, since, unless you have contemplated a particular possibility, other lawyers could and will argue that it was not considered and so should be a reason to set the agreement aside.

The typical reasons a court will set aside a Separation Agreement are:

Lack of full, complete and honest financial disclosure it is really not adequate to simply state you know or are aware of the other’s finances. Evidence, usually a sworn financial statement, will need to be demonstrated otherwise the agreement may easily be set aside, and this is even more clear now that the Family Law Act makes full disclosure a law at section 5.

Duress, coercion, and unconscionability these can be interpreted in a variety of ways but you have to remember that the court understands that parties potentially have emotions and other factors that can amount to unfair force being exerted against a person who enters a contract. One example would include someone not having sufficient time to consider the agreement because some event was imminent, such a factor has on many occasions led to agreements being set aside.

Failure to obtain independent legal advice people are often surprised at this but given the many necessary considerations even well intention and amicable separating parties may be faced with an agreement being thrown out because one or both of the parties did not consult a lawyer and as such were not aware of what rights and obligations they were losing by entering into a Separation Agreement.

 

As a lawyer who focuses on the diverse needs of family members at a specific point in their lives, I feel privileged to add value and understanding at this difficult time. We are often able to add significant value to these discussions and typically this can come in actual savings of taxes, and legal fees. We are confident in employing our services and aim to do this in a way that brings you the most timely and cost-effective results. In family matters, we often employ various techniques which include a multitude of dispute resolution mechanisms and always employ a strategy to advocate for you.

 

 

Non-unionized employees in British Columbia who are terminated by the employer without cause are entitled to reasonable notice of the termination.  Reasonable notice can be given as pay in lieu of notice, as working notice, or as a combination of both.

These employees are entitled to statutory pay or working notice pursuant to the Employment Standards Act, and unless they are bound by an employment agreement that says otherwise, they may also be entitled to additional “common law” reasonable notice that is enforceable by the courts.

An employee’s reasonable notice period is usually calculated in weeks or months.  In calculating an employee’s entitlement to reasonable notice, the courts will consider the length of service of the employee, their age, and their ability to find other work.  The employee’s length of service tends to be a highly determinative factor, but in some cases, disputes may arise as to how the employee’s length of service is to be calculated.  It is typical of many long service employment relationships that there will be breaks in the employee's service.  Typically, an employee will want their entire employment history counted when determining the length of service, while the employer is interested in minimizing their severance obligations.

In some cases, the court will ignore a break in service when calculating reasonable notice.  To make such a determination, the court will consider the length of the break relative to the length of service, the conduct of the employer in respect of the break (i.e., was the employee temporarily forced out of employment by the employer), as well as any evidence that shows that the employer intended to treat the employee’s service as continuous.  Typically, if the employee willingly leaves their job for another and is away for a considerable time before returning, the employment will not be considered as continuous.

If you are a long-serving employee who has been terminated from your employment, it is crucial that you seek legal advice.  An employer seeking to terminate a long serving employee should also be cautious as issues such these, as the amounts at stake as pay in lieu of notice could be substantial.

 

eric avatarW. Eric Pedersen is a lawyer practising in Velletta & Company's civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal

At Velletta & Company, our number one goal is to provide each of our clients with exceptional customer service. This starts right from the very first meeting. Throughout your matter, you may find yourself in our office or in contact with us quite frequently and we want to make sure we start the relationship off on the right foot!

Here are 5 things that you as the client can bring to make the process go even smoother.

 

  1. Two pieces of photo ID.

We need to confirm that you are you! Your ID is necessary for us to have relevant information about you that relates to the case such as your legal name, drivers license #, etc.   Examples of acceptable ID include Driver’s License, Passports and Medical Services Card (with photo ID).

 

  1. Pen & Paper

We will cover a number of things in our first meeting and there may be certain steps or documentation that we need you to follow through with—so note-taking in our meetings is always encouraged! Whether it is a pen and paper or notes on your cell phone—anything works.

 

  1. A List of Questions

Before your meeting write down any questions you may have. We are happy to answer them all and to help you understand the process that will take place. We want to make sure the process is as stress-free for you as possible.

 

  1. Relevant Documents

Bring any documents you currently have relating to your case. These may be a range of things and will vary based on your case. But the general rule of thumb is that if it has any relevance at all to your case, bring it in.

 

  1. Method of Payment

Please ensure that you bring a method of payment with you. We will notify you before the meeting of our consultation or retainer fees if they apply.

 

By bringing these 5 items with you to your first meeting we can ensure the process goes even smoother for both parties involved. We can also dive right into the details of your case and begin the steps necessary to ensure the best outcome possible!

Meet Mr. Michael Velletta as he explains how he and the team at Velletta & Company are here to help you!

magnifiercross