Employment Law Conference 2023: Combo

Course Chairs
Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver

About the Course Chairs
Valerie Dixon is a lawyer in the City of Vancouver's Law Department and practices exclusively in the areas of labour, employment and human rights. Prior to joining the City, Valerie spent 14 years in private practice, first at Clark Wilson LLP and later at Miller Thomson LLP. Valerie has acted for a variety of employers, unionized and non-unionized, from small businesses to international corporations, health authorities, and municipalities. In addition to appearances before all levels of court in BC, Valerie has acted as counsel in the Supreme Court of Canada, and represented clients before various administrative tribunals.

James Kondopulos is a founding member and partner (practising through a law corporation) at the employment and labour law boutique of Roper Greyell LLP. He is frequently recommended as a strong advocate and has represented employers and senior employees before all levels of court and a wide range of workplace-related administrative tribunals in BC.

James was named one of Canada's leading lawyers under 40 by Lexpert. He is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory. He has been recognized repeatedly as a leader in the area of employment and labour law and is listed in Chambers Canada, Best Lawyers International, Canada and also Who's Who Legal, Labour, Employment and Benefits.

James spends most of his time outside work with his wife and their three beautiful children. He is a Director of the Chartered Professionals in Human Resources of BC & Yukon and is a past Director and Vice-Chair of the children's charity, Make-A-Wish BC & Yukon.

Featured Luncheon Speakers
Ellis Ross — MLA for Skeena and Official Opposition Shadow Minister for Energy and LNG, Terrace (Day 1)

Ellis Ross is the BC MLA for Skeena. In 2006, Ross negotiated and signed a $40 Billion liquified natural gas project in Kitimat, the largest single natural resource investment in BC history.

Ellis Ross became a full-time councillor for the Haisla Nation in 2003 before being elected chief councillor in 2011, and again in 2013. Prior to running for band council, Ross spent a lifetime in local industry and community organizing, coaching zone championship winning youth basketball teams and involving himself in programs to keep indigenous kids safe from drug abuse and organized crime.

In 2012, Ross was appointed the inaugural chair of the Aboriginal Business Investment Council and has been recognized as a business leader in both BC Business magazine and the Canadian Business magazine. In recognition of his community service, Ellis was awarded the Queen Elizabeth II Diamond Jubilee medal in 2013 and the Order of BC in 2014.

Ellis Ross lives in his hometown of Kitimat, BC, where he lives with his wife Tracey. He is a proud father of two daughters and a proud grandfather.

Professor Kenneth Thornicroft — Peter B. Gustavson School of Business, UVic, Victoria (Day 2)

Kenneth Thornicroft is a Professor of Law & Employment Relations with the University of Victoria's Gustavson School of Business. Dr. Thornicroft holds a law degree (LLB/JD 1979) from UBC and a doctorate (PhD 1996) in Labour and Human Resource Policy/Employment Law from the Weatherhead School of Management at Case Western Reserve University. Prior to joining academia, Dr. Thornicroft spent 10 years as a trial lawyer in Vancouver, BC. Since becoming an academic, he has received numerous teaching awards including six separate "Professor of the Year" awards as well as several other research and scholarship awards. Dr. Thornicroft is a member of the Law Society of BC, the BC Council of Administrative Tribunals, the BC Industrial Relations Association, the CBA, the Canadian Industrial Relations Association, the Canadian Labour Law Association, and the Society of Labor Economists.

Dr. Thornicroft is a former member of the BC Arbitration Review Panel, the BC Employment and Assistance Appeal Tribunal, the BC Parole Board, and the Delta Police Board. He is a current member of the BC Property Assessment Appeal Board, the BC Employment Standards Tribunal, and is an adjudicator with the BC Ministry of Education Student Appeals Branch. Dr. Thornicroft's professional practice is restricted to arbitration and alternative dispute resolution and he has acted as a third-party neutral (both as an arbitrator and a mediator) in a wide variety of contexts including employment disputes (in both the union and nonunion sectors), shareholder and partnership disputes, commercial and residential tenancy disputes, property valuation disputes, major personal injury claims, and franchise disputes. During the past two decades, Dr. Thornicroft has served as a third-party neutral in several thousand disputes.

Dr. Thornicroft is the author of approximately nearly 200 journal articles, conference papers, book reviews, and book chapters; his writing has been published in, among other outlets, The Advocate, Alberta Law Review, Business & the Contemporary World, Canadian Bar Review, Canadian Labour & Employment Law Journal, Education & Law Journal, Employee Relations, Employee Responsibilities and Rights Journal, Industrial and Labor Relations Review, Journal of Collective Negotiations in the Public Sector, Journal of Individual Employment Rights, Journal of Labor Research, Journal of Workplace Rights, Labor Law Journal, Labor Studies Journal, Relations Industrielles/Industrial Relations, and Women in Management Review. He is a co-author of Employment Obligations and Confidential Information (2nd edition, 2009; 3rd ed., 2015) and Collective Agreement Arbitration in Canada (4th edition, 2009; 5th ed., 2013; 6th ed., 2017) both published by LexisNexis Canada Inc., and Canadian Business Law – A BC Perspective (Emond Publishing, 2020). Dr. Thornicroft's current research focuses on employee/er rights issues, employment law and the Canadian Charter of Rights and Freedoms, and the interpretation and enforcement of employment contracts.

Planning Committee
William (Bill) C. Boyte (he/him) — General Counsel and University Secretary, Vancouver Island University, Nanaimo
Matthew Cooperwilliams (he/him) — Cooperwilliams Truman LLP, Vancouver
Blair W. Curtis (he/him) — Tevlin Gleadle Curtis Employment Law Strategies, Vancouver
Sara Forte (she/her) — Forte Workplace Law, Surrey
Preston Parsons (he/him) — Overholt Law LLP, Vancouver
Supriya Routh (he/him) — Associate Professor, Peter A. Allard School of Law, UBC, Vancouver
Kelly E. Slade-Kerr (she/her) — HHBG Employment Lawyers, Surrey
Nicole C.M. Toye (she/her) — Harris & Company LLP, Vancouver

Faculty

Day 1
Jeffrey Bastien (he/him) — Dentons Canada LLP, Vancouver
Sebastian Chern (he/him) — Howard Employment Law Corporation, Vancouver
Navpreet Chhina — Inlet Employment Law, Burnaby
Jessica Forman (she/her) — Forte Workplace Law, Surrey 
Micah Goldberg — Watson Goepel LLP, Vancouver 
Heather M. Hettiarachchi (she/her) — Integritas Workplace Law Corp., Richmond 
J. Geoffrey Howard (he/him) — Howard Employment Law Corporation, Vancouver
Richard B. Johnson (he/him) — Ascent Employment Law Corporation, Vancouver
Connor F. Levy (he/him) — Miller Titerle + Co., Vancouver 
Sarah Lumsden (she/her) — Southern Butler Price LLP, North Vancouver
Claire L. Marchant (she/her) — Director, Practice Advice and Equity Ombudsperson, Law Society of BC, Vancouver 
Michelle McKinnon (she/her) — McMillan LLP, Vancouver
Nazanin Panah (she/her) — Inlet Employment Law, Port Moody
Lou Poskitt — Miller Titerle + Co., Vancouver
Salim Visram (he/him) — Dentons Canada LLP, Vancouver

Day 2
Anita Atwal (she/her) — Anita Atwal Law Corporation, Surrey
Erin Brandt (she/her) — PortaLaw Corporation, Vancouver
Pamela Costanzo (she/her) — Roper Greyell LLP, Vancouver
Christopher Drinovz (he/him) — KSW Lawyers, Surrey 
Kimberly Gosel (she/her) — Borden Ladner Gervais LLP, Vancouver 
Alejandra (Ale) Henao (she/her) — KSW Lawyers, Surrey
Sarah Hentschel (she/her) — Watson Goepel LLP, Vancouver
Greg Heywood (he/him) — Roper Greyell LLP, Vancouver
James Hsu (he/him) — PortaLaw Corporation, Vancouver
Graham Nattress (he/him) — Overholt Law LLP, Vancouver 
Samantha Stepney (she/her)— Borden Ladner Gervais LLP, Vancouver 
Michael Thompson (he/him) — Decision Maker/Team Leader, Ministry of Labour – Employment Standards Branch, Richmond 
Gradin D. Tyler (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver
Mary Walsh — Executive Director, Ministry of Labour – Employment Standards Branch, Richmond
Cameron R. Wardell (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver

Course Materials Contributors
Maryama Elmi (she/her) — Articled Student, Borden Ladner Gervais LLP, Vancouver
Kirsten Hildebrandt (she/her) — Designated Paralegal, KSW Lawyers, Surrey
Roza Milani (she/her) — Mathews, Dinsdale & Clark LLP, Vancouver
Sophie Toor (she/her) — Roper Greyell LLP, Vancouver

Click here for full faculty bios

Day 1
Thursday, May 4, 2023

Welcome and Land Acknowledgement (9:00 – 9:15)

Genevieve Chang (she/her) — Program Lawyer, CLEBC, Vancouver
Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver

Broadening the Horizons of Employment Law: A comparative Review of Ontario Notice Periods (9:15 – 10:20)

• overview of general reasonable notice principles
• review of recent Ontario case law relating to reasonable notice, including:
  • issues of contractual interpretation
  • impact of COVID-19 on the reasonable notice assessment
  • mitigation issues
  • exceptional circumstances warranting reasonable notice over the upper limit
• discussion of similar or diverging trends in BC

Navpreet Chhina — Inlet Employment Law, Burnaby
Micah Goldberg — Watson Goepel LLP, Vancouver 
Michelle McKinnon (she/her) — McMillan LLP, Vancouver
Nazanin Panah (she/her) — Inlet Employment Law, Port Moody

BREAK (10:20 – 10:35)

Environmental Scans, Workplace Assessments, Cultural Scans—What on Earth Are We Talking About (10:35 – 11:40)

• what are we talking about? What are these "alternative" workplace investigations and when would you want to use them 
• what is involved in conducting them—nuts and bolts of how to conduct them and how they are different from a traditional workplace investigation
• what are their limitations and how can they be used to help restore trust and peace within the workplace
• best practices for investigators and clients hiring someone to conduct these scans 
  • importance of trauma-informed lens
  • confidentiality is key
  • sample terms of reference
  • creativity is important—tailor them to the needs of the client

Jessica Forman (she/her) — Forte Workplace Law, Surrey 
Sarah Lumsden (she/her) — Southern Butler Price LLP, North Vancouver
Lou Poskitt — Miller Titerle + Co., Vancouver

Mitigation of Damages (11:40 – 12:30)

• mitigation in general
• onus and threshold
• issues in focus
  • overview of what is and is not considered acceptable forms of mitigation effort
  • re-employment or continuing employment with the dismissing employer
  • moonlighting—is continuing employment on the "other job" considered mitigation
  • sale of a business
  • evidentiary issues—show me the proof
• practical guidance—top tips for defendants and plaintiffs

Jeffrey Bastien (he/him) — Dentons Canada LLP, Vancouver
Richard B. Johnson (he/him) — Ascent Employment Law Corporation, Vancouver

LUNCH with Featured Speaker: Truth and Reconciliation (presenting remotely at 1:15) (12:30 – 2:15)

Ellis Ross — MLA for Skeena and Official Opposition Shadow Minister for Energy and LNG, Terrace

Post-COVID Constructive Dismissal Update (2:15 – 3:20)

• brief refresher on the test for constructive dismissal, including the two branches of the Potter test
• COVID era lessons on when introducing new policies or job requirements (Potter branch 1) constitute a constructive dismissal, including:
  • Parmar on mandatory vaccination policies
  • Benke on masking policies
• recent cases of constructive dismissal based on "series of employer actions"  (Potter branch 2), including toxic/intolerable working environment
• reorganizations: when can role changes with no reduction in compensation constitute a constructive dismissal

Sebastian Chern (he/him) — Howard Employment Law Corporation, Vancouver
J. Geoffrey Howard (he/him) — Howard Employment Law Corporation, Vancouver
Salim Visram (he/him) — Dentons Canada LLP, Vancouver

BREAK (3:20 – 3:35)

Professional Responsibility and Legal Ethics in Employment Law (3:35 – 4:45)

• panel discussion regarding ethics and professional responsibility in the context of employment law
• common ethics issues that arise for employment lawyers considered from a variety of vantage points
• practical guidance on how to identify and address ethical issues, and the resources available to lawyers to assist them

Heather M. Hettiarachchi (she/her) — Integritas Workplace Law Corp., Richmond 
Connor F. Levy (he/him) — Miller Titerle + Co., Vancouver 
Claire L. Marchant (she/her) — Director, Practice Advice and Equity Ombudsperson, Law Society of BC, Vancouver 

Reception (Coast Coal Harbour Hotel, Grouse Room, 4th Floor) (4:45 – 6:30), hosted by:

Day 2
Friday, May 5, 2023

Welcome (9:00 – 9:05)

Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver

The Injured Workers' Return to Work and WorkSafeBC's Vocational Rehabilitation (9:05 – 9:55)

• overview of WorkSafeBC's claim adjudication for injured workers whose disability resolves or remains permanent after it reaches a plateau with emphasis on returning to work 
  • "selective/light employment" options for workers deemed temporarily disabled under WorkSafeBC's policy (WCAT-2008-00584: factors to be considered when determining whether it is unreasonable for a worker to refuse selective light employment); discuss the financial benefits of providing "selective/light employment" for employers
  • vocational rehabilitation: return to work with the employer in an alternate job (gradual return to work plans, modified duties, etc.)
  • vocational rehabilitation: identify a suitable return to work goal for employment with a new employer in the same or related industry
  • vocational retraining in an alternate career
• Bill 41's mandate on an injured worker's return to the workplace: reciprocal duty to cooperate between the worker and employer and the employer's duty to maintain employment for injured workers
• employer responsibility to adhere to the BC Human Rights Code while engaged with WorkSafeBC and an injured worker's return to work
• status update on ICBC's "No Fault" impact on WorkSafeBC claims

Christopher Drinovz (he/him) — KSW Lawyers, Surrey 
Alejandra (Ale) Henao (she/her) — KSW Lawyers, Surrey

BREAK (9:55 – 10:10)

Contracts "with Benefits": There Are Always "Strings Attached" (10:10 – 11:00)

• key things every policyholder (employer) should know about their group benefits policy 
• considerations in administering group benefit plans
  • at the start of employment
  • when an employee goes on disability leave
  • when employment ends
• overlap between statutory benefits and private benefits (WorkSafe, EI, Pensions)
• key cases with employer liability

Sarah Hentschel (she/her) — Watson Goepel LLP, Vancouver
Graham Nattress (he/him) — Overholt Law LLP, Vancouver

Serving the Cause of Justice: Addressing Issues of Race and Culture in Employment Law (11:00 – 12:00)

• anti-racism
• how do we assist our clients with workplace issues related to race/culture?
• what are our obligations to ourselves?
• what are our obligations as employees or partners in law firms?

Anita Atwal (she/her) — Anita Atwal Law Corporation, Surrey
Pamela Costanzo (she/her) — Roper Greyell LLP, Vancouver
Greg Heywood (he/him) — Roper Greyell LLP, Vancouver

LUNCH with Featured Speaker: Class Actions and the Hostile Workplace: Lewis v. Westjet Airlines Ltd., 2022 BCCA 145 (at 1:00) (12:00 – 1:45)

• hostile workplaces and the Bhadauria/Honda Doctrine (i.e., should a tort of "discrimination" be recognized?)
• circumventing the Bhadauria/Honda Doctrine
• can human rights complaints effectively address hostile workplaces? 
• reimagining hostile workplace claims as breach of contract claims (Lewis v. Westjet)
• practical problems with the Lewis v. Westjet approach
• what about unionized workplaces? (Northern Regional Health Authority v. Horrocks, 2021 SCC 42)

Professor Kenneth Thornicroft — Peter B. Gustavson School of Business, UVic, Victoria

Employment Standards Update (1:45 – 2:35)

• program and legislative update
  • new and "old" ESA legislation gets implemented
  • demand for services increases
  • Branch and Ministry response
  • on the horizon
• case law developments

Michael Thompson (he/him) — Decision Maker/Team Leader, Ministry of Labour – Employment Standards Branch, Richmond 
Mary Walsh — Executive Director, Ministry of Labour – Employment Standards Branch, Richmond

BREAK (2:35 – 2:50)

Spicier than Your Average Peppercorn: Update Regarding Applicable Legal Principles and Case Law Respecting Consideration and Other Issues Surrounding Entering Into Amended Employment Agreements (2:50 – 3:40)

• brief overview of the history of the law of consideration both generally and in the employment context
• recent developments with respect to consideration in the employment context, including regarding contractual amendments, good faith and fairness of contractual bargains/unconscionability, and "sufficiency" of consideration
• recent developments regarding entering into new/amended employment agreements
• overview of strategies to increase the likelihood that changes to an employment agreement will be enforceable

Kimberly Gosel (she/her) — Borden Ladner Gervais LLP, Vancouver 
Samantha Stepney (she/her) — Borden Ladner Gervais LLP, Vancouver 

Case Law Update (3:40 – 4:40)

Erin Brandt (she/her) — PortaLaw Corporation, Vancouver
James Hsu (he/him) — PortaLaw Corporation, Vancouver
Gradin D. Tyler (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver
Cameron R. Wardell (he/him) — Mathews, Dinsdale & Clark LLP, Vancouver

Closing Comments (4:40 – 4:45)

Valerie Dixon (she/her) — City of Vancouver, Vancouver
James D. Kondopulos (he/him) — Roper Greyell LLP, Vancouver