Archive For The “News” Category

Reasonable Doubt: The most basic review of family and separating family taxes from a non-accountant

  • Warning – this article discusses taxes; it may be a good idea to get a cup of coffee before going any further and get all funny cat videos out of your system first. But if you are getting separated, divorced, or have children and want to have a quick & easy overview of what you need to know, read further.

First the basics for those of us that are bit shaky on this stuff (if you’re not skip down to the part about declaring your marital status to the Canada Revenue Agency).

money tax buttons

Credit vs. Deduction vs. Benefit

A tax credit is a deduction against the tax liability you owe the government. This means that if you owe the government $20,000.00 in taxes at the end of the year, but you hold a $5,000.00 tax credit for some magical reason, you will only pay the government $15,000.00 in taxes, not $20,000.00. Value of a tax credit? $1 of tax credit equals $1 in your pocket. Very valuable.

A tax deduction is a decrease in the amount of money you pay taxes on. This means that if you earned $60,000.00, but collected $5,000.00 in deductions, then you will only pay tax on $55,000.00. Value of a tax deduction? $1 of tax deduction equals a portion of that dollar in your pocket depending on your tax bracket (i.e. 42 cents if your top marginal tax rate is 42%).

A benefit (at least in the case of the child benefits I’m talking about in this article) is when the government pays you money. Until the end of this month (June 2016), Canadian families receive the Canadian Child Tax Benefit and the taxable Universal Child Care Benefit.

In July 2016, these benefits are finished and families will receive the Canada Child Benefit as one monthly payment. The Canada Child Benefit will be based on an “adjusted family net income.” Your adjusted family net income is your net income (line 236) on your tax return added to the net income of your spouse on your tax return. In order to get your benefits, even if you didn’t earn any money, you need to file your tax return every year by July.

Importance of informing the CRA of your marital status

Since 2014 (or so Turbo Tax says (https://turbotax.intuit.ca/tax-resources/married-tax-payers/how-savvy-canadian-couples-file-taxes.jsp)), you cannot file a joint return with your spouse. This is not America! Spouse or not, you are an economic individual. Canada Revenue Agency

For tax purposes, the CRA considers you separated the day you separated if you remain separated for 90 days or more. You are considered common law after having lived together for 12 months. This is different than under our Family Law Act in BC.

To declare your status, you have to fill out this form http://www.cra-arc.gc.ca/E/pbg/tf/rc65/rc65-15e.pdf and send it in.

Why does it matter what your marital status is on your taxes? Well you’ll have to speak to your accountant for the full story, but essentially you can group deductions and maximize benefits in some situations.

What do you need to take away from this?

It is critical that you inform the CRA of your change in marital status – be it common-law, married, or separated. If you get married or are common law, you may not be entitled to some of the benefits or programs offered to you if your adjusted net family income makes you ineligible. If the CRA catches you not making the declaration and collecting benefits you are not entitled to, then you will have to pay a penalty and likely have to pay back the overpayment of benefits to you.

Why is it critical that you file for your separated status when you can?

Because you may be entitled to benefits that you were not entitled to when you were with your spouse, especially if you are the lower income earner. It’s more expensive than most people realize to maintain two houses instead of one.

Child care arrangements and how this affects your benefits and credits

When you separate, you will want to notify the CRA of the child care arrangements you have with your spouse. This can get really sticky and can involve a serious review by the CRA and letters from neighbours, teachers, doctors and lawyers to prove where your child is living.

Child care arrangements affect two things:

  1. Who gets the Canada Child Benefit? and
  2. Who can claim the eligible dependent credit?

As of 2011, the CRA does recognize a shared custody or parenting arrangement and will split benefits equally between parents. Other than that the CRA will pay the benefits to the person who has primary responsibility for the children.

The eligible dependent credit is a credit of up to $11,237 (in 2015) if you did not have a spouse or common law partner (or if you did you were not living with, supporting or being supported by your partner), maintained a home and lived in it with your qualifying dependent.

Your qualifying dependent is someone related to you who depends on you for their support and includes your child under the age of 18. You cannot split this credit with the other parent.

tax booklet

If you paid child support for your child, you cannot claim this credit. You cannot claim this credit if you and the child’s other parent cannot agree who is going to claim it because both of you maintain a home for your child. If there is only one child between two people, then it is common for parents to take turns claiming the credit each year.

There is a lot more to family and separating family taxes than I have included in this article. These are merely the basics and the biggest issues that you need to be aware of. If you are going through a divorce, you should be consulting with your accountant and your lawyer about the best way to plan your taxes while staying on the right side of the CRA.

There is also a lot of information from reputable sources on the internet. If you are doing your own research, make sure your information is up to date and be sure to check everything against the CRA’s own website if possible.

Laurel Dietz

Lawyer

and Columnist for Reasonable Doubt with Georgia Straight

FASThelp Business Recordkeeping and Electronic Evidence

FASTHelp

What is included in your business records may surprise you!  Do you retain your e-mails? What about your meta-data? Electronic evidence is increasingly important in business litigation.

Business Records & Evidence in the Electronic Age

(and how it affects you)

 

computer image

For some years now computers and other electronic devices have become an integral part of carrying on business for many enterprises. In addition to using software programs for document creation and storage, text messaging and email have become a large part of our communication systems as has social networking. Necessarily, the law follows societal change and must adapt with it. In the result nowadays much evidence needed to resolve disputes is to be found stored in                                                                                      electronic format.

Generically, the law refers to this as “ESI” – Electronic Storage of Information. What now poses a greater problem for those involved in litigation is dealing with the volume, types and locations of electronic “documents” as the law, and the rules of court, require litigants to list, disclose and produce documents within their possession or control pertinent to the issues in the dispute. puzzle pieceReasonableness remains a guiding principle, however the substantive law and rules of court have developed such that a litigant who has not taken reasonable steps to keep such electronically stored information in a place, and in a manner that is readily ascertainable and producible runs the risk of being sanctioned by the court eg., having your claim or defence struck out (and thereby losing by default) or, alternatively, losing your case because you just didn’t keep or cannot find that email or text message that makes or breaks the case.

We recommend therefore that you design and implement a policy and procedure for the organized electronic filingstorage – retention, indexing and searching– of important electronic information to avoid a serious pitfall. A general policy for the routine destruction/deletion of such information when it becomes old, if also reasonable, will not likely result in censure from the court. The time interval for this may vary from enterprise to enterprise but the Income Tax Act Canada effectively requires document retention for 7 years so you may wish to use that as a guide. If unsure, seek advice.

Don’t forget your PDA’s, Blackberry’s etc., as well as social networking pages/sites – Facebook etc., Remember, if you want information to remain private, DON’T put it on Facebook or anywhere else on the internet.

FASThelp: Timing your family law matters.

Timing your family law matters: A calendar for co-parents

 

Co parenting can be difficult, even at the best of times! Prior to your custody arrangements being heard in court, you will have to co parent in the midst of your separation. There are many ways to ease the tension; including timing your family law matters. Read on for advice on co parenting before written agreements are solidified.man head in hands

A lot of frustration in legal matters occurs because parents do not think ahead when making their arrangements for their children. For co-parents that have a rocky relationship, planning ahead is critical for peace of mind. The court process moves slowly on its own. There are periods of time necessary for providing notice to the other side, then there is time to wait for a court date itself in order to have your matter heard.

In addition, before you can even get to court, you must also navigate your lawyer’s schedule.co parenting heartbreak

Most lawyer’s schedules are booked up months in advance and it takes time to prepare a court application and set a court date to have the matter heard. Be prepared and think ahead; start discussions early with your former spouse about how you would like to share holidays and special events with the children. If the discussions are unsuccessful, contact your lawyer as soon as possible.

 

You should allow yourself 3-6 months to settle the matter if it needs to proceed to court; this time estimate will be greater or lesser, depending on the state of your legal matters. This seems like a lot of time, however, there is no shame in having your agreement or order months in advance of your trip, holiday, or special event. It will save on the nail biting and extreme anxiety that last minute planning results in.

co_parenting_philosophy

In August and September, it is time to start thinking about Christmas. Do you have plans yet for how that will look? Once most couples have been through the process once, they have a plan for how each Christmas will look every year thereafter. In January and February, it is time to start making plans for the summer holidays. These are likely to change every year and may depend on extended family or work schedules. Some couples are successful in negotiating the same schedule every summer in order to reduce friction and promote consistency for the children.

“Shared parenting = ALLIES. Not enemies.”  unknown

 

In June, start thinking about Halloween. Halloween is one of those events which seems frivolous at first, but for parents of young children, its an important event and one that is often overlooked until the last minute when making plans. Thinking about Halloween in June may seem ridiculously early, however, it can allow for communication between counsel or other dispute resolution mechanisms to resolve the matter if necessary.

If Easter or Thanksgiving or any other holiday is important to your family, allow yourself 3 to 6 months to make arrangements with your co-parent and consult with your lawyer. The more important the event is to you and the more difficult your relationship with your co-parent is, the earlier you will want to bring the matter to the attention of your lawyer.

Dogwood Law 778-410-5090

 

Supreme Court of Canada Strikes Down BC Court Hearing Fees

The Supreme Court of Canada has struck down the Rules of the BC Supreme Court requiring litigants to pay hearing day fees.  For more information, click here

FASThelp: Wills Variation Actions

On March 31, 2014 the Wills Variation Act was repealed by WESA – the Wills, Estates
and Succession Act, SBC 2009, c. 13. The statutory right available to those classes of
persons to have the Supreme Court review and vary a Will was preserved unchanged in
Division 6 of WESA.

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What is a Wills Variation Action?

Section 60 of WESA provides as follows:
“Maintenance from estate 60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”
Section 62 of WESA also provides:
“Evidence 62 (1) In an action under section 60, the court may accept the evidence it considers proper respecting the will-maker’s reasons, so far as may be determined,
(a) for making the gifts made in the will, or
(b) for not making adequate provision for the will-maker’s spouse or children,
including any written statement signed by the will-maker.
(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must
have regard to all the circumstances from which an inference may reasonably be drawn about the
accuracy or otherwise of the statement.”

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While a Wills Variation lawsuit is open to the spouse and children of a will-maker there
are legal time limits within which it must be brought, and, as is the case with all litigation in the
Supreme Court of British Columbia, the unsuccessful litigant usually pays the costs of the
successful party as well as their own. So, this is not a course of action that is embarked upon
lightly, but should be thoroughly investigated                                                                                               beforehand.

If you think you have been treated by a parent in his or her Will contrary to what the law provides, contact us. We can help you decide what is the best course of action to take.

Dogwood Law Corporation 778-410-5090

 

FASTHelp: Divorce

Here in Canada, we have a “no-fault” divorce system. This means that any married couple can get divorced as long as they live separate and apart for at least one year prior to applying for the divorce.

Divorce

In a “no fault” divorce, the reason you and your spouse are divorcing simply does not matter when settling your other matters surrounding your divorce. These matters may include property division, debt division, pension division, spousal support, child support, parenting time of children and allocation of parenting responsibilities of the children. Essentially, you are free (and expected) to manage your personal emotional turmoil on your own time and not have a judge weigh and assess the reasons for your divorce and determine who was the most morally justified party.

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In order to apply for a divorce in British Columbia, you must be a resident in BC for at least 1 year prior to starting the process. You must have a valid marriage certificate. If your marriage certificate is not in English, you will also need a translation of the marriage certificate as well. Keep in mind, prior to getting your divorce the Courts require that you sort out the most important things in your life – your plan for your children if you have any. Child support and parenting arrangements MUST be considered before you apply for your divorce.

Most lawyers would recommend that you sort out your property matters as well before applying for your divorce. Other than sorting through the difficult realities of separation, the actual divorce procedure is relatively simple. If you do not have any contested matters in your divorce, you can apply for what is called a “desk order divorce.” This means that you do not even need to attend court in order to get your divorce order. A divorce usually takes effect 31 days after the order for divorce is made. This allows time for the court registry staff to complete the required paperwork on their end to ensure that your divorce is registered.

Simply getting a divorce does not mean that your former bank paperworkspouse is now automatically removed from title to your property or from your financial affairs. You must communicate with each institution to ensure that the proper steps have been taken to have yourself or your spouse removed from title to property, from bank accounts, credit cards, and mortgages, among other things. If you are freshly separated and wish to discuss the divorce process and consequences of divorce, it is worthwhile to consult a lawyer to make sure that you’ve considered everything. If you have been separated for a long time, but still have not managed to get your divorce finalized, speak to a lawyer about doing up the paperwork for you.

Dogwood Law offers a free 30 minute consultation process, call today and book your appointment.

778-410-5090

 

FASTHelp: Must you have a will?

Don’t know if you should have a will or not?

There is no law of general application in force in British Columbia which requires you to
make a Will.

Last Will and TestamentIn the absence of your having a Will to express your wishes after your death, your
possessions (collectively termed your “estate”), will be distributed in accordance with a
legislated scheme set forth in the Wills Estates and Succession Act (WESA) which will vary
depending on the next of kin you have left behind. This scheme may not be agreeable to youeither now or in the future.

A person who dies without having a Will is said to die “intestate”.
Just because there is no legal requirement for anyone to make a Will does not mean
that a given person should not make a Will. On the contrary, making a Will and keeping your
Will up to date, is not only the assurance that your estate will be given to those people to
whom you want it to be given, but it’s also a labour of love on your part to ease the burden
and suffering of the loved ones you have left behind as to what they should do with your
estate.

Attractive Happy Senior Couple in Front Yard of House.

Make a will and feel secure.

For the most part having a valid and up to date Will goes a VERY long way toward
making a difficult time for your partner and family much, much easier to contend with.
All Wills are not equal however, and our law is a living thing which constantly changes.
Accordingly we do not recommend the use of “stationers Wills”, the prepackaged
one-size-fits-all Will “Form” available for a few dollars from a stationer or from the internet.
(UNLESS, of course, you want to send your estate into years of protracted and expensive
litigation.) The difficulty with a do-it-yourself Will is that you cannot fix any problems created
by it…..you are no longer here.

legacy and will
Generally, if you: own a home; have a spouse; children; or are in a second/blended family, then you should make a Will.

Contact us for more information and a free initial consultation. 778-410-5090

 

FASThelp: Wills, Estates and Succession

Updating our law

For more than 100 years in British Columbia the administration of the estates of deceased persons was governed primarily by a statute called the Estate Administration Act.  On March 31, 2014 all that changes when the Wills, Estates and Succession Act came into force and a number of older statutes (and statutory provisions) including the Estate Administration Act were repealed.  Gone are:

Estate Administration Act, RSBC 1996, c. 122
Probate Recognition Act, RSBC 1996, c. 376
Wills Act, RSBC 1996, c. 48
Wills Variation Act, RSBC 1996, c. 490
Law and Equity Act, RSBC 1996, c. 253, s. 46, 49, 50, & 51
Survivorship and Presumption of Death Act, RSBC 1996, c. 444, s. 2
and some 41 other statutes have been amended to fit with the new legislative scheme.

in addition to new rules, forms and procedures regarding making Wills AND administering deceased estates, there have also been significant changes made to this extent of law in this entire area. The law now IS NOT NECESSARILY THE SAME AS IT WAS BEFORE MARCH 31, 2014

Since WESA embodies some very sweeping legal changes indeed, we at DogwoodLaw recommend that if you have undergone any substantial changes in your life or estate planning recently, or have been thinking about reviewing or changing your estate plan in the near future, you may wish to consider doing that and addressing your planning objectives sooner rather than later.

 

Our experienced lawyers can help answer your questions and provide you with the advice and documentation you need to accomplish your goals.
Contact us with no obligation.
We are approachable.
We understand what you’re thinking.

Dogwood Law 778-410-5090

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“Stress”, “Bullying” and “Harassment” in the Workplace

“Stress”, “Bullying” and “Harassment” in the Workplace
WorkSafe BC published new policies on “bullying” and “harassment” on March 20, 2013 pursuant to last summer’s passage of the Amendments to the Workers Compensation Act. They impose significant responsibilities on employers.
Workers Compensation Amendment Act – Bill 14

General
The Workers Compensation Amendment Act (the “Amendment Act”)1 and came into force on July 1, 2012, amending provisions in the Workers Compensation Act (the “WCA”).2 The most significant change amended s.5.1 of the WCA relating to compensation for workplace stress that does not result from an injury. The provision now reads as:

Mental Disorder
5.1 (1) Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder
(a) either
(i) is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or
(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment,
(b) is diagnosed by a psychiatrist or a psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and
(c) is not caused by a decision of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment.

3 While the former legislation only covered “sudden and unexpected” trauma that led to “mental stress”, worker’s compensation coverage now extends to reactions to one or more traumatic events or a mental disorder predominantly caused by significant work-related stress or a
1 Workers Compensation Amendment Act, 2011, S.B.C. 2012, c.23 [Amendment Act].
2 Workers Compensation Act, RSBC 1996, c.492 [WCA].
3 WCA at s.5.1.
2 Cumulative series of work-related stressors.

4 The legislation specifically includes workplace bullying and harassment as a significant work-related stressor.

5 While the scope of compensable injuries has broadened significantly under the WCA there is also the addition of the more stringent requirement of a diagnosis by a psychiatrist or psychologist where previously a physician would do.

6 Disorders that have been caused by employers’ decisions relating to the employment itself continue to be excluded in the WCA.

7 The new provision will apply to claims that are filed prior to July 1, 2012 if they haven’t been adjudicated yet.

8 Threshold for Mental Disorder
As mentioned above, while the WCA now encompasses a broader range of workplace stress disorders, the threshold of diagnosis is somewhat elevated with the requirement of a psychiatrist or psychologist and the strict adherence to the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”). The stress that an employee is experiencing cannot simply be usual stress that accompanies a job but an actual diagnosable mental disorder. In reviewing the diagnosis of a claimant the Board will consider the prior medical history of the worker.

9 Traumatic Events
S.5.1(1)(a)(i) makes reference to one or more traumatic events. A traumatic event will be interpreted as an emotionally shocking event experienced first hand. While this will usually be something extraordinary that isn’t often found in the course of the job, some workers, such as emergency workers, regularly see traumatic events and are not precluded from this section. However their job duties would be taken into consideration.

10 Significant Work-Related Stressor
S.5.1(1)(a)(ii) covers significant work-related stressors, either a single incident or a series of them.

11 The Claims Manual explains that to be significant an incident must be excessive in either intensity or duration from the normal pressures of employment. It is not meant to compensate employees for general interpersonal conflicts. However, incidents of work-place
4 “Legislative Changes to Adjudicating Mental Disorder Claims” WorkSafeBC (11 September 2012), online: WorkSafeBC <http://www.worksafebc.com> [“Changes to Adjudicating”].
5 WCA, supra note 2 at s.5.1(1)(a)(ii).
6 WCA, ibid at s.5.1(1)(b).
7 WCA, ibid at s.5.1(1)(c).
8 “Changes to Adjudicating”, supra note 4.
9 WorkSafeBC, Rehabilitation Services & Claims Manual (11 September 2012) online: WorkSafeBC <http://www.worksafebc.com> at C3-13.00 [Claims Manual].
10 Ibid.
11 WCA, supra note 2 at 5.1(1)(a)(ii).
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bullying or harassment have been specifically included in the legislation as a significant work-related stressor.
Causation
When it comes to mental disorders, causation can be a difficult thing to pinpoint. In order for the WCA to apply, the mental disorder must be a reaction arising out of and in the course of the workers employment.12
The traumatic or significant events must have happened at “a time and place and during an activity consistent with, and reasonably incidental to, the obligations and expectations of the worker’s employment”.13
Not only do the events have to have happened at work, but in order for the mental disorder to be compensable, the traumatic events relied on have to be significant (more than trivial) in their causation and any significant work-related stressors relied on must be the predominant cause of the mental disorder.14 While there may be other factors that relate to the causation of a mental disorder, the above requirements must be met in order for it to be compensated under the WCA.
Exclusions
A worker cannot be compensated for a mental disorder that arises due to a decision of an employer that relates to the worker’s employment. The WCA lists a number of examples in s.5.1(1)(c) such as discipline or termination, but these are inclusive and it is not an exhaustive list.15 The Claims Manual suggests that other examples include “decisions of the employer relating to workload and deadlines, work evaluation, performance management, transfers, changes in job duties, lay-offs, demotions and reorganizations.”16
Occupational Health and Safety Policies on Workplace Bullying and Harassment
As mentioned above there was a specific inclusion of workplace bullying and harassment in the amended s.5.1 of the WCA. The Provincial Government and WorkSafeBC are working to tackle this specific problem in a number of ways. The goal is to reduce bullying and its effects on workers which can lead to mental disorder that is now compensable under the WCA. The Provincial Government also wants to bring British Columbia’s policies up to date with other
12 WCA, supra note 2.
13 Claims Manual, supra note 9.
14 Ibid.
15 WCA, supra note 2 at 5.1(1)(c).
16 Claims Manual, supra note 9.
4 jurisdictions such as Saskatchewan, Manitoba, Quebec, Ontario and the federal government.
17 In fact, BC’s go further.
Occupational Health and Safety Workplace Bullying and Harassment Policy
WorkSafeBC produced a discussion paper and drafted occupational health and safety policies relating to workplace bullying and harassment. Stakeholders were able to provide feedback and comments on the Proposed Policies until September 28, 2012.18 On March 20, 2013, a Resolution of the Board of Directors approved the policies (the “Policies”) relating to workplace bullying and harassment that will go into force on November 1, 2013.19
The Policies flow from the Act, specifically s.115(1)(a) which sets out the duties of an employer to ensure the health and safety of workers, s.116(1)(a) which requires workers to take reasonable steps to protect the health and safety of themselves and others and finally s. 117(1)(a) which relates in the same way to supervisors.20
The definition of bullying and harassment will be as follows:
(a) includes any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated, but
(b) excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.21
The Resolution also includes what WorkSafeBC considers to be reasonable steps to avoid the hazard of harassment and bullying. Below is the recommendation for the steps to be taken by employers contained in the Resolution that will comprise Policy Statement D3-115-2:
(a) developing a policy statement with respect to workplace bullying and harassment not being acceptable or tolerated;
(b) taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment;
(c) developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints. Included must be procedures for a workers to report if the employer, supervisor or person acting on behalf of the employer, is the alleged bully or harasser;
17 WorkSafeBC – Policy and Regulation Division, Discussion Paper – New Occupational Health and Safety Policies on Workplace Bullying and Harassment (11 September 2012) online: WorkSafeBC <http://www.worksafebc.com> [Discussion Paper].
18 Ibid.
19 WorkSafe BC – Resolution of the Board of Directors, 2013/03/20 – 03 (20 March 2013) online: WorkSafeBC <http://www.worksafebc.com/regulation_and_policy/policy_decision/board_decisions/2013/mar/assets/20130320-03.pdf> [Resolution].
20 WCA, supra note 2 at s.115-117.
21 Resolution, supra note 19.
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(d) developing and implementing procedures for how the employer will deal with incidents or complaints of workplace bullying and harassment including:
i. how and when investigations will be conducted
ii. what will be included in the investigation;
iii. roles and responsibilities of employers, supervisors, workers and others;
iv. follow-up to the investigation (description of corrective actions, timeframe, dealing with adverse symptoms, etc.); and
v. record keeping requirements
(e) informing workers of the policy statement in (a) and the steps taken in (b);
(f) training supervisors and workers on:
a. recognizing the potential for bullying and harassment;
b. responding to bullying and harassment; and
c. procedures for reporting, and how the employer will deal with incidents or complaints of bullying and harassment in (c) and (d) respectively;
(g) annually reviewing (a), (b), (c), and (d);
(h) not engaging in bullying and harassment of workers and supervisors; and
(i) applying and complying with the employer’s policies and procedures on bullying and harassment.22
Workers also have obligations under the Policies which include not engaging in bullying or harassment, reporting bullying behaviour that they witness and complying with all procedures set out by the employer.23 Finally, supervisors will also have obligations under the Policies that reinforce their duty to ensure the health and safety of those that they are supervising. The Resolution sets out that a supervisor’s obligation is to ensure the health and safety of workers, including complying with and applying the policies that the employer has in place to prevent bullying and harassment and not engaging in bullying or harassing behaviour themselves. 24
Stress and Human Rights
Stress in itself is not a mental disorder requiring accommodation under Human Rights schemes. As discussed above the stress must lead to a diagnosable mental disorder under the current DSM to be qualified for workers compensation.25 The same goes for Human Rights actions.
The jurisprudence in both the courts and the Human Rights Tribunal has consistently stated that stress alone is not enough to lead to the requirement of accommodation of a mental disability, the threshold under s.13(1) of the Human Rights Code (the “Code”).26 Instead, that stress has to lead to more complex disability, one that is diagnosable, in order to require accommodation from the employer and be the grounds of discrimination.27
22 Ibid.
23 Ibid at Policy Statement D3-116-1.
24 Ibid at Policy Statement D3-117-2.
25 Claims Manual, supra note 9.
26 Human Rights Code, RSBC 1996, c.210.
27 Vandale v. Town of Golden and other, 2009 BCHRT 219.
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Stress can certainly lead to more complex and diagnosable mental disabilities, but there must be evidence to confirm the disability. It is up to the claimant to prove that they have a mental disability, and the Human Rights Tribunal, much like WorkSafeBC, prefers this to be in the form of a diagnosis of a qualified mental health professional.28
While the DSM has evolved in recent years and now encompasses a wider array of disorders, basic stress is yet to be a diagnosable mental disability. The latest DSM contains an anxiety disorder called “acute stress disorder” but even this would be unlikely to be the basic stress that most employees are facing. Acute Stress Disorder arises from witnessing a severely traumatic event.29 It is not simply an accumulation of workplace stressors. The AMA is currently reviewing the DSM. Consideration is being given to including “stress” and “worry” as recognized medical disorders.
While there is a possibility that workplace stress can manifest itself into diagnosable mental disabilities, stress as we use it colloquially is not enough. The case law is clear on this point. However, if an employee is requiring accommodation due to the mental disability that stress has caused, an employer has a duty to investigate the disability, which will often result in the requirement of medical documentation to prove that the disability exists.30 If the employee does have a mental disability caused by stress then the duty of the employer is to accommodate that disability to the point of undue hardship, just like any other disability.31
Conclusion
Employers should implement or review their harassment policy to ensure that it incorporates a defined procedure for reporting, investigating and remedying potential workplace harassment. Employees and supervisors need to be educated as to the policy and their obligations both under the Policies and the WCA. Managers need to know they have a duty to inquire into and objectively review workplace situations that could constitute harassment whether or not a complaint is received. In other words, managers must actively monitor the workplace to ensure it is free of harassment and bullying and report any suspected abuses.
Any instance of potential harassment must be investigated in a fair, objective and timely manner. To ensure that the investigation possesses those qualities, the investigator should not have any prior involvement in either the issues or with the persons involved. Many employers choose to contract external resources to conduct such investigations. The purpose of the investigation is to gather all of the material facts. The investigator does not, however, determine the penalty, if any. That is the role of the employer. An automatic penalty is not appropriate. In the past, employers have frequently implemented policies where dismissal was the automatic result of harassing behavior. Many have faced wrongful dismissal actions as a result and suffered substantial damage awards where the harassing behavior has not met the ‘just cause’
28 Ford v. Peak Products Manufacturing and others, 2009 BCHRT 191 [Ford].
29 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.) (Washington, DC: American Psychiatric Association, 2000) [DSM].
30 Ford, supra note 28.
31 Halliday v. Michelin North American (Canada) Ltd., [2006] NSHRBID No. 6.
7
standard for dismissal. Discipline may not be the appropriate response. In recent years, mediation has proven effective in resolving these types of workplace issues.
A procedure will also have to be developed for responding to WorkSafe BC when a workplace harassment claim is made. This should include careful consideration of who should respond. While in some workplaces, the practice is to have the appropriate department head respond to OHS claims, we recommend that a designated human resources staff member respond to mental disorder claims, particularly those involving harassment or bullying.
This paper is current to May, 2013. It is a general statement of current law and policy in an area that will be subject to change in the near future as WCB policies and case law develop and refines the legislation. These materials do not apply to any particular fact situation or case. Individual cases and situations will require further legal advice.

Prepared by: Nicole Hamilton, Articled Student
William E MacDonald, Counsel

Reasonable Doubt: Privacy in the age of wires, texts and crime

With our increasingly public lives and our insatiable appetite for more information and gossip, privacy has become the legal issue de jour. I mean, what exactly is privacy? Who should have it? And when? What information should be protected and to what extent? When do you waive your right privacy? How can information about you be collected, recorded, analyzed?

All the answers to these questions can change depending on how information is going to be used and by whom. As we seek out new information, we develop new ingenious ways to use it; all of these uses often come at the expense of maintaining some semblance of privacy.

As I write this, greater legal minds than mine are mulling over the answers to these questions. Not surprisingly, criminal law is one area of law that has been dealing with privacy issues for the past thirty years- long before technology made it a trendy legal issue for everyone and everything.

The criminal law has a fairly concrete idea of what information is private and how the state can get at it legally. Nonetheless, new technological capabilities require the courts to revisit the parameters of privacy as police find new ways to get at information and individuals find new ways to generate and store information.

Last week, the Supreme Court of Canada released a decision, Regina v. TELUS Communications Co., that gives added protection to the transmission of our text messages. From now on, in order for the police to intercept text messages, they must apply for a wiretap authorization- same as they would to intercept voice phone calls.

Different telecommunication companies employ different methods of providing services to their clients and some companies in order to ensure good service to their clients collect text messages sent using their network. Telus, in particular, at the time of transmission copies any text messages and saves these copies for 30 days. This is for the purpose of troubleshooting any potential problems.

Of course, where there is a repository of information, there will be someone trying to get at it. In this case, police applied for a general warrant in order to compel Telus to provide to them, daily, all future texts from a particular number.

A general warrant is much easier to get than a wiretap authorization. Police applied for the warrant knowing that Telus already independently collects copies of texts to ensure proper transmission. For the police this meant that there was another way to get at the information they needed.

Instead of getting a wiretap authorization to snatch the text messages mid-transmission, the police could simply scoop the unsuspecting text messages from a Telus computer database.

Telus fought the general warrant; likely well aware that their clientele would drop Telus like a hot potato, if it came out that at any time unbeknownst to them, Telus may be providing their private communications to the police.

The Crown argued that because the text messages in question were to be taken from a computer database as opposed to mid-transmission, the seizure of the text messages was not an “intercept” in the same way that listening in on a live phone call is an “intercept.” This reasoning was rejected by a majority of the SCC.

As a result, no matter how our telecommunication provider chooses to provide its service to us, we can all rest assured that our current private text conversations are afforded the same level of privacy as our telephone conversations.

Your historical text conversations that are retained or accessed by your telecommunication service provider have no such protection, however. Those can be obtained by a production order, which is a little bit like a search warrant for records. Ultimately, it seems the court has determined there will be a dichotomy between text conversations that have been had in the past and text conversations that are yet to be.

-Laurel Dietz

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