MEDIA COVERAGE-STREAMLINE COUNSEL
Employment law-Inadvertent Dismissal-Employer Must Pay Medical Benefits and Costs
The Vancouver Sun - Business Section
26 January 2005 [More]
Business gives wary approval to B.C. privacy bill:
The Vancouver Sun - Business Section
16 May 2003 [More]
For your eyes only
Vancouver Courier–Cover Story
November 2003 [More]
No deliberate plan to force woman out, judge finds
Firm must pay medical benefits, court costs
Wednesday, January 26, 2005
A Prince George sawmill effectively fired a 20-year clerical employee by asking her to calculate softwood lumber duties, the B.C. Supreme Court has ruled.
Lakeland Mills Ltd. was ordered to pay Kathleen Fisher $2,000 plus 10 months' worth of medical benefits and court costs for "constructive dismissal" on Monday.
Fisher, 66, resigned from the company in the fall of 2003 after she failed to master a new software program to tally shipping costs and receipts, which factored in U.S. countervailing and anti-dumping duties.
Judge Robert Crawford characterized the case as a misunderstanding between well-meaning people that got out of hand.
"I do not find there was any deliberate plan by the defendant designed to force the plaintiff to resign from her employment as a result of the changes of her duties," he wrote.
Crawford went on to say, "A failure to communicate between a sensitive employee, an office manager seeking to plan ahead, and a kindly company president unhappily resulted in litigation."
The dispute might have been averted had Lakeland chief executive Keith Andersen offered to let Fisher stay on with the company in her old position as a receptionist and accounts payable/receivable clerk when she came to him to resign, the judge said. Andersen instead suggested her decision to retire was a good one.
"I do not fault Mr. Andersen one iota, but in terms of the contract law that applies, Ms. Fisher had been faced with unilateral changes of a substantial kind to her employment," the judge wrote. The situation was exacerbated by an aggressively worded letter Fisher's lawyer sent to Andersen that extinguished any chance of reconciliation, he said.
A employee is considered "constructively" dismissed when the employer unilaterally makes a fundamental change in the employee's contract. Should the employee resign as a result, he or she can claim damages from the employer in lieu of reasonable notice.
"Constructive dismissal is treated in law as an outright dismissal," said Janina Kon, a lawyer with Streamline Counsel Inc. in Vancouver and professor with the University of B.C. 's Sauder School of Business.
The courts only consider three questions in such cases, she explained. First, was the employee dismissed? If so, was there just cause? And finally, what is the reasonable notice required?
It may come as a surprise to most employers, but if they simply reduce an employee's pay or restructure their benefits, that constitutes a change in the terms of employment that could precipitate constructive dismissal.
Moreover, adverse business conditions or other pressures on the company are not considered just cause for dismissal, Kon said.
"What will happen with this case is it will open the door to a lot of other ones," she predicted.
The reason there aren't more cases of this sort already is that workers do not usually know their rights, Kon said. Managers, meanwhile, would do well to understand labour law or to seek counsel when re-assigning reluctant employees.
Among other things, workers are entitled to adequate training when they take on new tasks.
"The lesson is to make sure to manage your employees well, particularly when you are putting them through change," she said.
© The Vancouver Sun 2005
Business gives wary approval to B.C.
The law would control information collected and how it's handled
Author Michael McCullough, The Vancouver Sun (firstname.lastname@example.org)
Date 16 May 2003
Copyright 2003, The Vancouver Sun
Business groups are holding their noses with one hand as they
give a wary thumbs up with the other to B.C.'s proposed privacy
"If we've got to have such a piece of legislation -- and
we're not convinced that we do -- then what the British Columbia
government has done is a vast improvement," said B.C. Chamber
of Commerce president John Winter.
The Personal Information Protection Act, introduced in the B.C.
legislature April 30, is easier to understand and implement
than the federal privacy law it's meant to supercede on Jan.
1, 2004, Winter said.
Winter also gives Victoria credit for granting small businesses
the tools to comply with the law. Through organizations such
as the Chamber, the government will help teach businesses how
their information management practices in accordance with the
"We think B.C. basically got it right," said John
Gustavson, president and CEO of the Canadian Marketing Association.
While marketing bodies especially will have to change many of
their business practices if they have not already done so, "those
changes are not unreasonable. Not a huge amount of red tape
The CMA particularly finds the grandfathering provision in the
B.C. act preferable to the federal one.
"If you have consent to use personal information already,
you can continue to use it and disclose it, so you don't have
to go back and contact your customers all over again,"
Likewise Art Field, vice-president of the 850-member Private
Investigators Association of B.C., said that while the law will
make it more difficult for private investigators to carry out
their work, it allows them more leeway than the federal law.
Following the lead of the European Union, which requires that
its trading partners have laws protecting the privacy of individuals,
the federal government enacted the Personal Information Protection
and Electronic Documents Act (PIPEDA) in 2000. Already applicable
to federally regulated companies and firms operating in more
than one province, it becomes the law
of the land for every company on Jan. 1, except in provinces
that enact their own, substantially similar legislation.
The B.C. law, which has neither been debated nor passed
yet, is simpler but wider-reaching than PIPEDA, said Janina
Kon, a lawyer and University of B.C. professor who consults
companies on matters of privacy law. Most notably, it covers
employees as well as customers, and affects associations and
non- profit organizations as well as corporations.
"A lot of businesses don't even realize that this
legislation is going to be affecting them," Kon said. "Pretty
much every business and association and non-profit organization
will be affected for the simple reason that they have employees."
In essence both laws require organizations to obtain
consent from individuals to collect and keep information about
them or transfer it to a third party.
The B.C. law will make it illegal for companies to perform a
number of hitherto common business practices, Kon noted:
- Companies cannot outsource payroll services or management
of benefits packages to another company without notifying and
at least obtaining the implicit consent of their employees;
- Direct marketers cannot contact a consumer for the purpose
of promoting or selling a different product or service than
one they already supply him or her with, unless the consumer
consents to obtaining such additional information or offers;
- Magazine publishers cannot rent lists of subscribers to other
companies for the purpose of direct marketing;
- Companies cannot send unsolicited e-mail ("spam")
to people with whom they have never done business (spammers
outside Canada, of course, pose a problem of enforcement);
- Credit card issuers cannot send applications to individuals
on the basis of their credit rating unless the individual consents
to that information transfer;
- Employers must, on request, provide an employee with any performance
evaluations or other records they collect and keep on the employee.
Perhaps the most important implication for businesses
is the liability they assume for the protection of personal
information, Kon added. Companies will now be subject to damages
in court if, for example, personal information is stolen from
an insufficiently secure filing cabinet or computer file.
"All it takes is one violation dealing with sensitive
information and a corporation's reputation could be seriously
affected," Kon said. She cites the case of ISM Canada;
thieves stole a computer containing 800,000 names, social insurance
numbers and bank account information from the data management
company's Regina office last year. In the future the parties
to this kind of data breach will face stiffer penalties in the
Over the long term, Kon expects consumers and employees will
become increasingly aware of their right to privacy and demand
that companies respect it. One potential upside for business
is that people put more trust in things like e-commerce. In
her practice, Kon has also noticed that firms that undergo a
privacy audit usually discover other ways to make their information
management systems more efficient.
Still, it may be a stretch to demand every business, down to the
a business plan.
As per the federal law, there are no exemptions for small business,
said B.C. Management Services Minister Sandy Santori. However, the
government intends to publish a boilerplate document that business
owners can fill out to fulfill their obligation under the act.
"I think it's a landmark statute. We've taken a leadership
role," Santori said. He notes that Ontario's privacy law has
gone through 33 drafts without being passed, and other provinces
such as Alberta are looking at adopting the B.C. provisions.
B.C.'s law must still be approved by the federal government to
apply Jan. 1, however, and federal privacy commissioner George Radwanski
has stated publicly that the B.C. act does not measure up to federal
standards. In a letter to Santori last week, Radwanski criticized
its over-reliance on implicit consent and the fact that it does
not cover information gathered before the act comes into effect.
The B.C. Civil Liberties Association has come out in support of
the B.C. law, despite some specific criticisms.
"I think the provincial government has taken a courageous
and wise initiative in crafting its own act," said BCCLA executive
director Murray Mollard.
"This is the 21st Century. I think privacy has become a consistent
value that Canadians want to see protected and I think this is an
important step to achieve that goal."
The Public Interest Advocacy Centre in Ottawa also offered qualified
approval to the B.C. law, giving it a B+ in its legislative report
Janina M. Kon, BA (Hons.), LL.B., is a legal consultant and legal
educator, and a member of the Law Society of BC. She has practiced
privacy law in law firms in Vancouver, has been an advisor in human
resources and labour relations in the largest private sector employer
in BC, and has taught courses and facilitated law workshops at academic
institutions and corporations. Janina is Sessional Faculty at the
Sauder School of Business at UBC, and the President of a firm specializing
in privacy compliance, training, and policy development.
For your eyes only
VANCOUVER COURIER – Cover Story
By Stanley Tromp-contributing writer
Lawyer Janina Kon is helping charities adjust to
a new law that prevents businesses and non-profits from sharing
personal information without consent.
A few years ago, Murray Mollard was walking down a back alley not
far from his West Hastings office when he passed a dumpster containing
some papers. It turned out to be bank correspondence that was full
of personal data such as account numbers and balances.
At the time, Mollard, as executive director of the B.C. Civil Liberties
Association, was preparing a submission to the Senate committee
creating the new federal privacy act. "It was sensitive enough
that it caused me considerable alarm," he says. "So I
phoned up the bank and asked, 'How did this happen? What are you
going to do about it?' I never learned the answer."
These days, new technologies allow for intrusions of privacy and
abuses of personal data that were inconceivable years ago.
When you sign up for a supermarket club card and buy food with it,
someone is keeping track of what you buy. When you donate to one
charity, it's common to get calls from others. If you receive computer
spam, or telemarketing calls at dinnertime, or have a mailbox stuffed
with credit card application forms, do you ever wonder how they
got hold of your contact information?
Governments are making an effort to stem the tide of privacy abuses
by passing a new generation of privacy protection laws. In B.C.,
one of these-Bill 38, the Personal Information Protection Act (PIPA)-has
already passed into law and takes effect in January.
Throughout the province, companies and charities have been mobilizing
for Jan. 1, hiring "privacy officers" and training staff.
Brochures explaining customer privacy policies are turning up in
banks and video stores.
Lawyers are poring over the statute to prepare for civil lawsuits,
while governments prepare web sites and a PIPA hotline to help the
It may sound dry, but the PIPA law's reach is wide: it will directly
affect you if you've ever paid a phone bill, used an ATM, owned
a credit card, joined a church's e-mail list, paid union dues, or
subscribed to a newspaper.
The PIPA law sets up rules for how businesses and charities collect,
use and share your personal information. Now they can only do so
with your consent-oral, written, or "implicit"-and for
specific purposes, on a strict need-to-know basis. They also have
a duty to protect it and correct inaccuracies. PIPA requires every
private-sector group in B.C. to institute its own privacy code,
and hire a chief privacy officer.
Neil Brown, chief privacy officer of VanCity, says the credit union
has been prepared for more than a year, having trained 1,600 staff
from three to six hours each, at considerable expense. "It's
more than a legal requirement. It's an ethical obligation. Our relationship
with clients must be based on trust."
Personal information includes your home address and phone number,
age, weight, height, marital status, social insurance and other
ID numbers, medical and financial records, race or ethnic origin,
educational and employment background, personnel file contents (such
as performance reviews, letters of discipline). The definition doesn't
include your name, job title, work products, business address or
If you think an organization has used your information improperly-for
example, a charity has given your name and address to other groups
that then solicit you for funds, the government insists you approach
the organization first to seek an explanation. Chris Norman, director
of the B.C. government's privacy branch, said government doesn't
have the resources to police the PIPA law from the top down, which
means the public has to do its own scrutiny of practices. But if
that fails to satisfy you, you can call the office of B.C. Information
and Privacy Commissioner David Loukidelis. If attempts to negotiate
an agreement fail, he can issue a binding ruling, and an organization
can be charged for not obeying it. Complainants can also sue civilly
if they can prove damages from a privacy breach.
Loukidelis, however, worries that he lacks the resources to fulfill
his current duties, even before his new PIPA enforcement tasks begin
in January. During the 2001 election campaign, the B.C. Liberals
promised to keep the Commissioner's funding stable. Yet after taking
office, they cut Loukidelis' budget and staff by about one-third
over three years, leaving a skeleton crew of 15. By contrast, the
Alberta Commissioner's office, with half the workload, has a staff
There are also a few exceptions to your privacy rights. In some
cases, your consent is not required to use personal information,
such as during a medical emergency or fraud investigation (a controversial
exemption). You also can't see your own records if doing so would
invade someone else's privacy or safety or endanger law enforcement.
The PIPA law not only empowers customers, but employees too. As
an employee, or charity volunteer, you can demand to see the personal
information your employer holds on you, such as job evaluations.
The law also guards against the improper sharing of those records.
"How would you like to work in an office where your performance
evaluation was left open on the boss's desk?" asks lawyer and
privacy expert Janina Kon.
Governments had little choice but to respond to popular demand by
bringing in privacy laws. A 2000 poll by Odyssey Marketing found
that 92 per cent of British Columbians wanted such protection. They're
not the only ones- when Americans were offered an option to be put
on a telemarketers "Do Not Call" list, more responded
than voted in the last U.S. general election.
One effect of the new law is to expose publicly for the first time
the thriving but mainly unseen world of data exchange, which goes
far beyond merely selling name lists to advertisers to creating
an elaborate customer "profile" from many sources. Some
people will even play a game to see who is distributing their information.
For example, plain old Dave Smith might subscribe to one magazine
using a name such as "David Q. Smith III," and if he later
receives junk mail for David Q. Smith III, he'll know that magazine
has sold his name.
The public push for the new laws was sparked by some grotesque privacy
violations reported in the media-institutional blunders, which is
a separate issue from the massive and growing crime of ID theft.
ù In what sounds like an X-Files episode, sensitive personal
medical files, which were sent from a medical center to a document
disposal company for shredding and recycling, ended up being sold
as props to the X-Files TV series in Vancouver.
ù In the highest-profile Canadian case, ISM Canada in Regina,
a branch of IBM, had one of its hard drives stolen (it later discovered
that an employee had taken it home). The drive held the personal
data of one million people, such as their SIN, bank account and
credit information. ISM could have said nothing, but set up call
centres and sent letters of apology to all clients, urging them
to do credit and bank account checks (to save ISM from liability),
adding "we'll pay for it." A class action lawsuit is underway.
ù When an American charity held an online contest, the winners'
names and addresses were posted online. One of the winners had a
restraining order against her violent husband, but he found her
address on the web site, and ended up beating her.
ù In mid-September, two Bank of Montreal branch computers
filled with sensitive customer information were offered on the online
eBay auction site. Geoff Ellis had bought the computers secondhand
from Ecosys Canada Inc., a computer asset-management company based
in Montreal. Ellis sells used computer equipment on eBay.com out
of his parents' North York basement. The machines were posted for
sale on the online site for six hours before he realized they contained
hundreds of customer files, including account balances and information
on lines of credit, credit cards, RRSPs, GICs and insurance. Privacy
experts were appalled the computers had no password protection or
Two years ago, Ottawa's Protection of Personal Information and Protection
of Electronic Documents Act (PIPEDA) came into force, overseeing
industries regulated by the federal government, such as banks, airlines,
and telecommunication companies.
The B.C. PIPA, by contrast, covers all provincially regulated companies,
non-profits, political parties, churches and labour unions-right
down to an individual or sole proprietorship, a lawyer in private
practice or a hairdresser working at home. (A separate B.C. law
to cover government activities, the Freedom of Information and Protection
of Privacy Act, was passed in 1993.)
PIPEDA was passed partially because Canada risked being shut out
of European trade. In 1995, the European Union passed its Data Protection
Directive, which banned the flow of data from any EU country to
a non-EU member country, unless that country had acceptable data
protection laws. The United States is reluctant to pass similar
laws but, for this economic reason, soon might have no choice.
Few would argue the good intentions of PIPA, yet the law has its
critics. Former federal privacy commissioner George Radwanski wrote
in May that, in his view, the PIPA had "very grave" deficiencies
and is not "substantially similar" enough to the federal
act, but his rebuke was mainly ignored after he was personally discredited
by a scandal involving allegations of inappropriate expenses. The
B.C. law is now widely expected to be accepted by Ottawa as sufficiently
similar to the federal act.
While stressing that he supports PIPA generally, John Dixon, past
president of the B.C. Civil Liberties Association, is offended by
two clauses in the act.
First, it includes an exemption for "investigatory purposes,"
and the definition of the term-such as for breach of contract and
securities violations-is broader than in the federal privacy act.
"It creates a huge hole to collect, use and disclose personal
information during investigations without consent," Dixon wrote
to the government. Art Field of the 850-member Private Investigators
Association of B.C., said that while the law will make it more difficult
for PIs to do their work, it allows them more leeway than the federal
act, which, for example, demands that suspicions that initiate an
investigation be more than speculative.
Secondly, Dixon is concerned that PIPA allows organizations that
hold personal information to give it out to PIs or police without
the subject's consent. "It is certainly not an organization's
responsibility to assist others in their investigations," he
wrote. Sometimes this release is justified, he added, "but
only if there is a court order, warrant or subpoena that requires
By contrast, the judicial process has tighter checks on privacy
protection, and so discourages "fishing expeditions."
Lawyer Michael Geist, writing in the Toronto Star this month, protested
that privacy laws will be toothless unless the privacy commissioners
publicly name-which they almost never do-the groups they find in
violation. "Extensive media coverage understandably generates
far more fear in the hearts of organizations than any prospective
penalties or fines could cause since the harm to reputation inflicted
by a front page headline detailing privacy abuses can cause damage
that may take years to undo," he wrote. "[Not naming companies]
hurts both companies that maintain good privacy practices as well
as the general public."
Ironically, he adds, the Americans' aggressive enforcement of their
milder privacy laws through government lawsuits may actually lead
to better corporate privacy practices there.
Mollard generally agrees, but adds that the effect of the naming
sanction might be weakened by overuse if the company's violation
was minor, accidental or isolated.
As January approaches, PIPA has been met with bewilderment
by many non-profit groups. In mid-September, 40 executives from
B.C. charities and societies gathered in a large room in the downtown
YWCA building to learn from lawyer and privacy expert Janina Kon
what they can and can't do with their clients' records.
It was the first of four such one-day workshops, co-sponsored
by VanCity Credit Union and the B.C. Law Foundation. Three times
as many non-profit groups wanted to attend but the events were sold
"It could take four days to explain all this,"
Kon said. After outlining the PIPA's 10 basic legal requirements,
she warned that non-profits could be sued for negligence if they
fail to follow the rules, and that they're also responsible for
the actions of their subcontractees -for example, a contract payroll
Kon provided the attentive audience with a range of tips:
don't use a common network printer, disable employees' access codes
when they leave the company, do spring cleanings of personal data
that you don't absolutely need, don't leave bank account numbers
on papers open on desks-instead, lock them up, even during coffee
breaks-and note the distinction between consent "opt-in"
and "opt-out." With the former, a company must ask for
your personal information before taking it; with opt-out, it may
initially collect the information without permission, with the presumption
that you've agreed unless you specifically object.
Some of the new restraints are far from obvious. For example,
Kon explained, "You can't wish an employee 'happy birthday'
on the company web page if you reveal their age. But you can do
it with their consent."
Beyond the new legal demands, why should the private sector
expend money and energy to protect the public's personal privacy?
For many reasons, Kon told them: ethics, safety, credibility, and
commercial advantage over competitors. "All else being equal,
would your clients prefer using a company or charity that has a
delegates, seemed self evident.
B.C. companies are also struggling to cope with the new law. A PIPA
panel discussion at a governmental privacy conference in Victoria
Sept. 26 revealed the state of corporate uncertainty on the PIPA
law. Norman recalled that companies were at first worried about
the impending statute: "They asked, 'This isn't freedom-of-information
for the business sector, is it?' No, we said. Then they relaxed."
In a slide show, Anita Fineberg, privacy officer for IMS Health,
Canada's largest private health research company, outlined the "six
C's" of the private sector's response to Canada's new privacy
laws. Catatonic: most small and medium businesses. Confused: the
health sector, because B.C. and Alberta's laws are different from
the federal PIPEDA, and information crosses borders. Confrontational:
some medical associations want to be exempt from PIPEDA-many doctors
prefer to control their patients' records and consider it too much
time and work to collect their patients' consent for its use. Conflicted:
companies worry about the price tag of complying with the new laws,
and want the privacy commissioners to consult more with them. Concerned:
Canadian subsidiaries of EU companies with high profiles fear media
or consumer scrutiny. Compliant: federally regulated industries.
To date, only B.C. and Alberta-and Quebec back in 1994-have passed
private sector privacy laws, but Ottawa has yet to decide if B.C.'s
law is adequate. If the federal government decides the provinces'
privacy laws are not "substantially similar" to the federal
PIPEDA, by Jan. 1, 2004, the federal law will be the standard across
To prepare the PIPA law draft, Victoria held in-depth discussions
with 170 groups-such as retailers, private health care, insurance
companies, charities-who strongly supported the B.C. law as being
far less complex to follow than the federal PIPEDA.
"If we've got to have such a piece of legislation-and we're
not convinced that we do-then what the B.C. government has done
is a vast improvement," said John Winter, president of the
B.C. Chamber of Commerce.