No sick leave required by BC legislation, liability limited for a home inspection, and no municipal liability for a slip and fall on ice

 

BC is the only province in Canada where employers are not required to provide any sick leave. While various other forms of leave are required by the Employment Standards Act, including unpaid leave to care for seriously ill or injured family members, sick leave is not required.

Various other recent amendments to the Employment Standards Act are discussed along with a report assessing the desirability of requiring sick leave, either paid or unpaid.

Those opposed to mandatory sick leave point to Statistics Canada data that show the federal government employees, who are entitled to paid sick leave, take 13.5 sick days a year, compared to 8.4 days for private-sector employees. A culture of “taking a sick day” can undermine productivity, while the alternative of having sick employees attend work, to avoid losing pay, can also be very undesirable.

In the context of the current concerns over COVID-19, it would make sense for the government to, at least temporarily, amend the Employment Standards Act to require sick leave, and time off for employees who are quarantined. Such an amendment would facilitate the federal government’s decision to permit UI payments, in such circumstances, with no waiting period.

Also discussed is a case involving a home inspection of a house in Parksville. The purchasers of the home hired a home inspector who delivered a positive report. A few months after completing the home purchase, water was discovered to be running into the house from a sundeck. The cost of repairs was in excess of $350,000.

The inspection contract had a clause that limited liability to the cost of doing the inspection: $551.25.

The trial judge, and Court of Appeal, upheld the limit on liability finding that there had been no gross negligence, and the contract wasn’t unconscionable. The takeaway advise is that home inspection contracts, with limits on liability, don’t afford insurance for problems not noticed by the inspector.

Finally, a case involving a woman who slipped on a patch of back ice in a parking lot operated by the Town of Sidney is discussed. The claim was dismissed because municipalities are not liable for policy decisions not to clear snow and ice. Governments are only responsible if they make a policy decision to do something, and the policy is implemented in a negligent way. Here the decision to make the clearing of ice in the parking lot a low priority was found to be a legitimate policy decision.

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

An automated transcript of the March 12, 2020 show:

Adam Stirling [00:00:00] It is time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers, joining us remotely today. Michael, how are you?

Michael T. Mulligan [00:00:07] I’m doing just great. Not in self-isolation, so I can’t complain.

Adam Stirling [00:00:11] Indeed. Indeed. At least none of us are, yet, to some degree. Speaking of isolation and the idea that some folks, may not, be able to fulfill their duties at their workplaces, especially if they’re under the weather; proposed changes have been made regarding the Employment Standards Act. That’s our first story. Tell us how all this works.

Michael T. Mulligan [00:00:29] Yes, there have been a number of things that have been happening to this act over the past year and a bit. It’s the British Columbia Employment Standards Act, which sets out minimum terms of employment, essentially. It is the act, which would do things like provide for maternity leave, for provide for, you know, various other conditions of employment, like notice or pay if somebody is fired. That sort of thing. And it’s one of those pieces of legislation which tends to ping pong a little bit as the province politically ping pongs between the sort of business party, whatever it might be of the day and the NDP when they’re in power.

Adam Stirling [00:01:11] Yes.

Michael T. Mulligan [00:01:11] So we’re currently in the ping pong in the direction of perhaps advancing the rights of employees. And so there was a report, a very large report, that was prepared by an organization called the British Columbia Law Institute that did an examination of this act and discussed and proposed a whole number of possible changes to it, some of which have been implemented. Others of which are proposed. And yet other things are in that report but haven’t yet been announced one way or the other by the government. Some of the things which changed already that listeners may recall, last year, were things like increasing the minimum age of work, presumptively from 12 to 16 years of age, with some small exceptions and some changes in terms of how tips were to be handled. Now there’s been another number of changes which are currently being proposed, one of which was a proposed change to permit leave to be taken in cases of domestic or sexual violence. And listeners may recall the leader of the opposition, I think, put his foot in the mouth, his foot in his mouth, talking about that when he described it as leave for people in, quote, tough marriages or something of that….

Adam Stirling [00:02:32] Well, yes, I did here about that.

Michael T. Mulligan [00:02:34] Yes, that that actually caused me to carefully read what was proposed. And it’s in a bill called Bill 5. And that section deals currently it provides for unpaid leave in cases where people are dealing with domestic or sexual violence. What’s proposed is to create some paid leave, some five days of paid leave in those circumstances. But I suppose the debate probably ended with that foot and mouth incident. But one thing they think is worth exploring there is just how broadly they’ve interpreted what those things are, domestic or sexual violence. Domestic violence is defined to include things such as emotional abuse, which is defined to include: threats, respecting various things, including property or pets. So, I suppose, as somebody said, I’m going to divorce you and sue you and I’m going to get the dog and the house. You might get five days of paid leave to deal with that. That may not be what people perhaps first came to mind when you think of the very serious topic of domestic or sexual violence. People might not think that it would extend that far.

Adam Stirling [00:03:42] Now, now. Help me understand this, because I know that in the case of, say, extortion, if the threat being made pertains to legal action and that is not extortion, do this or I’ll sue you is not extortion, where do this or I’ll burn down your house. Obviously, a threat, and extortion there. The example that you’ve just given us involves the bringing of legal action. Is that provided for in the statute?

Michael T. Mulligan [00:04:00] There’s no exception for it to find its way in defined as include: psychological or emotional abuse, psychological or emotional abuse by an intimate partner, including intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property and so…

Adam Stirling [00:04:17] Interesting.

Michael T. Mulligan [00:04:17] the definition is so broad that I think a threat to take the dog or to, you know, sue for property might well be captured by this concept of a threat involving a pet or a threat involving property. And if this pass, you would then be able to get five days paid leave. So that’s interesting. But in the current context of corona virus concerns and the need for people to stay home or to, you know, self-isolate, one of the things which is absent from the long list of sort of hodgepodge reasons why somebody might take a leave from work, including all kinds of things like: disappearance of a child or need to care for somebody else in the home, now that might be relevant. What BC does not have, and this is surprising, I think, any provision that requires sick days to be provided for. Virtually every other province in the country does have in their Employment Standards Act provision for that in the range five days, seven days, some province of like Ontario require there to be two paid days and then eight unpaid days, for example. British Columbia is really an outlier in that circumstance where we have no requirement that an employer provide any sick leave at all. Now we do have the human rights code that provides, that it’s not permitted to discriminate against somebody based on a physical or mental disability.

Adam Stirling [00:05:47] Yes,

Michael T. Mulligan [00:05:47] But I don’t think you’re fitting I’m self-isolating because I shook hands with Trump into the category of physical or mental disability. It might be a very responsible thing to do, but and I would expect that most employers aren’t going to be causing a problem if somebody needed to isolate to avoid infecting other people at work. But this kind of legislation comes into play when there is that kind of a rub. And so that was discussed in that large report that was prepared. But there has been no legislation dealing with this issue. And it strikes me that in the current environment, this would be something which should be considered immediately, how that should be handled and how broad that should be, because we’ve had this federal announcement the they’re going to permit people to make unemployment insurance claims with no waiting period.

Adam Stirling [00:06:38] Yes.

Michael T. Mulligan [00:06:39] Where they’re required to isolate. Now, that’s not much help if somebody had a tyrannical employer who said, well, that’s fine, but you’re fired. Right. And so that’s how a prompt amendment to the Employment Standards Act dealing with this issue, I think, it very least should be considered. Now, there has been pushback on that. And one of the things identified in the report was that it and it’s clear from studies that if you provide paid sick leave, it encourages what are described as people taking, you know, taking a sick day, is the language. And Statistics Canada did a study of that in 2017, and they looked at, for example, the number of working days that somebody employed in the public sector took each year versus somebody in the private sector where they might not have as generous a six day policy. And that difference was 13.5 In the public sector versus 8.4 days in the private sector, and so employers would point to that and say, look, you’ve got people that are, you know, perhaps taking sick leave when they’re not sick. And so that raises a whole debate about should it be paid? Should you have to have a doctor’s note or not have a doctor’s note? And, you know, how long should it be and who should bear the cost of that? And the reverse problem of the person taking the of course, the taking a sick day who’s not legitimately ill is described as presenteeism, which is a problem with the person who’s, you know, sick. And because if there’s no paid sick leave, the person does, look, I’ve got to pay my rent, I’m showing up there.

Adam Stirling [00:08:18] Yeah.

Michael T. Mulligan [00:08:19] And in the present context, you might make everyone else in your workplace sick. But this, I think, is really an anomaly in BC that we haven’t addressed, that we haven’t decided it should be paid or unpaid or should you have, require a doctor’s note or not require a doctor’s note. We just haven’t dealt with that. We’re sort of the outlier. And in the current context, even if it’s something to be done on a temporary basis to deal with the concern about the Corona virus, it seems to me that this is something the government might want to focus on. And I would expect that it’s the sort of thing which, if it was done even on a temporary basis, you’d likely get some pretty broad consensus that we ought to facilitate people who are either themselves sick or need to isolate themselves because they’ve been in contact with somebody who is sick, and allow them to be home without risk of being fired for doing so. That would dovetail, of course, with the federal announcement to allow people to make UI claims and that would remove at least the issue of the employer who might themselves be suffering because business is down, having to then pay employees that weren’t present. And so, this to my mind, amending the Employment Standards Act to at least on a temporary basis, permit people to take leave, either because they need to quarantine themselves or because they are ill, would be a wise idea. Something which should be done promptly and might give some more meaning in British Columbia to that federal change, saying that UI is going to be extended. So, the, if the government’s listening, it seems to me this is something, a meaningful change, which has been looked at and we ought to consider doing something about that sooner rather than later. You know, we can hope that people aren’t going to abuse these things and we’re going to we can hope that most employers would act reasonably.

Adam Stirling [00:10:17] Yes.

Michael T. Mulligan [00:10:17] But this sort of legislation is the fallback if you have people who aren’t acting in a reasonable and sensible way. And to my mind, this is something which should be fixed promptly because it may be very helpful for public health.

Adam Stirling [00:10:31] Is this something you could be fixed within Order in Council by Cabinet or would it require members of the Legislative Assembly voting on the amendments?

Michael T. Mulligan [00:10:38] It would require an amendment. It would require a statutory amendment because in BC we have no sick leave provision in the employment standards at all.

Adam Stirling [00:10:47] OK.

Michael T. Mulligan [00:10:47] You can take leave for a whole bunch of other reasons. Military service, jury duty. You can even do it if you need to take time off, and this is important to know if you need to take time to care for a sick family member. We have provisions for that. But what we don’t have provisions for are people taking the time that they require themselves because they’re sick. Nor do we have an express provision dealing with the issue of somebody who needs, who is not yet sick, but needs to quarantine themself. Right. That just isn’t dealt with. So, we do have provisions dealing with things like compassionate care leave when somebody needs to take time off to deal with a terminally ill family member. That can take time for that. There can be time taken off to deal with a critical illness. There can be time taken off for parental leave. We’ve got a whole bunch of things here. But what we don’t have is any provision for sick leave, which is a bit of a gap. Nor do we have any provision which would deal with the current concept, which would be, hey, you’re not sick, but, you know, you just shook hands with the sick. You know, you’re just high fived, you know, Trudeau or Tom Hanks. Maybe you should, you know, sit it out for a little bit. You don’t get everyone else at work ill and our act currently doesn’t make any provision for that. That’s a legislative gap, which seems to me we should be plugging pretty quickly. And I’d be hard-pressed to imagine how there’d be any political pushback to getting that sorted out.

Adam Stirling [00:12:24] All right. I’m looking at the parliamentary calendar. The House isn’t sitting this week nor next week, but MLA’s will return to the capitol on March the 23rd. Certainly something they should consider at that time, Michael.

Michael T. Mulligan [00:12:34] It seems to me, it seems to me this is the sort of thing in the current environment you’d be able to get through pretty rapidly, maybe make an amendment to the current Bill 5, which is the one dealing with that, they leave for circumstances of sexual or domestic violence, add this in and get this passed.

Adam Stirling [00:12:50] All right. Let’s take a quick break. Legally Speaking continues on CFAX 1070. Stay with us.

[00:12:56] COMMERCIAL.

Adam Stirling [00:12:56] It’s Michael Mulligan for Mulligan Defence Lawyers as we continue with legally speaking, more things shutting down by the moment, Michael.

Michael T. Mulligan [00:13:02] That seems to be a never-ending, but hopefully, the NHL employees are turning to the Employment Standards Act for some compensation. I’m not sure it deals with that.

Adam Stirling [00:13:13] Indeed, a mushroom who connects employees would be governed by. I’d have to look that up.

Michael T. Mulligan [00:13:18] I always say that jokingly. I should mention that the Employment Standards Act is designed to be the sort of legislative minimum and many employees, if they had a contract or they were a union member, for example, might well have provisions that are much more generous than what was in the Employment Standards Act. The concept of that act is to set the bare minimum. So, I’m only joking I’m sure the NHL players, of course, would ever contract and it would, it would deal with those.

Adam Stirling [00:13:44] All right. Fair enough. Our next story starts with a home inspection that is part of a purchase in Parksville that showed no problems. Things change, though. What happened?

Michael T. Mulligan [00:13:52] Yeah. This is, I think, a good cautionary tale for people. This was from Parksville and the couple was buying a home there and they hired a home inspector to go and do the inspection. The home inspection costs $551.25 cents, including GST. And that figure will be important in a moment because the contract had a provision that said any claims against the inspector for errors, omissions, breach of contract or negligence were limited to the cost of the inspection. That $500 figure. The inspector came and did his inspection of the house didn’t note any problems. Spent five and a half hours doing it, and so the couple took off the subject to conditions completed and bought the house. Very shortly after they bought the house, they bought it in the summer, come November, they discovered water leaking into the house from the sun deck and it turned out to be a $350,000 problem.

Adam Stirling [00:14:48] Wow.

Michael T. Mulligan [00:14:49] And so they sued various people, including the home inspectors, saying, hey, you should have alerted us to that problem. The home inspector, naturally, pointed to the provision of the contract that said, look, my liability is limited to that $551.25 cents and the trial judge agreed with home inspector. The arguments made by the couple that bought the home, they suggested that what happened there was gross negligence.

Adam Stirling [00:15:21] Oh,

Michael T. Mulligan [00:15:23] Which would not be covered.

Adam Stirling [00:15:23] Okay.

Michael T. Mulligan [00:15:23] Now that didn’t fly because the inspection was limited to a visual inspection. And that wouldn’t have been apparent by somebody, I suppose, looking at the sun deck. They also tried arguing that the contract provision was unconscionable and there’s some provision for not enforcing unconscionable contractual provisions. Yeah, but here the trial judge and now the Court of Appeal concluded that there was no inequality of bargaining power. Right. Sort of the home inspector versus the person hiring them.

Adam Stirling [00:15:53] Yes.

Michael T. Mulligan [00:15:54] These people weren’t obliged to hire the home inspector or forced to enter into this contract. And so, the net result is the Court of Appeal has upheld the trial judge and the homeowners are going to be on their own to pay for the $350,000 in water damage. So, the takeaway for people is when you’re hiring a home inspector, you’re not purchasing insurance effectively for your home being trouble free. What you’re purchasing for $551.25 cents would be an experienced person to look at it and see whether there are any apparent problems with it. And if it turns out there’s some issue not identified, if the contract to hire the home inspector includes a clause like this one, you’re not going to be able to recover if it turns out the home you bought was a dud or had some defect in it. That wouldn’t be apparent by somebody walking around and looking at it.

Adam Stirling [00:16:51] Yeah.

Michael T. Mulligan [00:16:52] So I guess the takeaway is, either carefully read the contract if you’re hiring a home inspector, I rather expect this kind of a provision is going to be overwhelmingly common and realize what you’re getting and what you’re not getting. It’s not a promise that your house is going to be trouble-free. It is simply somebody who’s experience looking at it and telling you whether they see a potential problem. And this kind of a clause, the Court of Appeal has made clear here, is going to be enforceable. And so, know what you’re getting and what you’re not getting and what you’re not getting is an insurance policy that your home isn’t going to have a leaky sun deck that cost you $350,000. You don’t get that for $551.25 cents.

Adam Stirling [00:17:38] All right. We’ve got three minutes left. Now, this story is very reminiscent of one that we discussed when it snowed. And you talked about to what degree do municipalities have an obligation to clear sidewalks and clear snow? And you say that that question turns substantially on what their policies are regarding clearing of sidewalks and clearing of snow. Has to do with the town of Sidney and ice being involved. Set this up for us.

Michael T. Mulligan [00:18:00] You’re exactly right. And this is a reason I thought it was worth mentioning is it’s an example of exactly that issue that we talked about. This occurred in 2017 when there’s a cold snap, it was minus 2 or minus 3. The plaintiff, who is a licensed practical nurse, was walking across a sidewalk or a parking lot owned by the town of Sidney. There was a small patch of black ice. She tripped and wound up being seriously hurt. Of course, surgery injured her shoulder. Bad injury. She sued the township of, the town of Sidney, saying, hey, you should have, you know, salted that are taking care of the black ice. The judge analyzed it exactly as we talked about before. Was this a policy decision? Right. Do you clear the ice or not? Or is this an operational decision? You’ve chosen to do it. You’ve done it poorly. Here, the judge found this was a policy decision not to clean or clear off potential ice, black ice in the parking lot. The judge analyzed whether it was the policy decision, saying that it was not a bad faith decision. It wasn’t so irrational as to be beyond the proper exercise of discretion. This was a decision based on budgetary considerations and policy considerations to designate that sort of area as a low priority for clearing off snow and ice. And the net result is that this was a decision not to clean up, not a bad job of cleaning it. And so, the poor nurse who heard herself slipping was unable to recover any money from the Town of Sidney.

Adam Stirling [00:19:35] So the takeaway, the city decides not to clear the ice if that is indeed the case and there is no liability except, I would suppose very limited conditions.

Michael T. Mulligan [00:19:44] Yeah. If you have you could have you’re only going to be successful if you could show that they made the policy decision to do it and they just did it very badly or carelessly and therefore you were injured. That might get you some compensation but if a municipality decides for budgetary reasons, for example, we’re just not clearing the ice and snow in the parking lot. We’re going to spend all of our money on the sidewalks, for example.

Adam Stirling [00:20:10] Yes.

Michael T. Mulligan [00:20:11] Then you’re not going to have any claim against them when you slip and fall in the place, they decided to make a low priority.

Adam Stirling [00:20:17] All right. Sorry about that computer sound, though. That was me. I just clicked something. Michael Mulligan from Mulligan Defence Lawyers, we always appreciate your knowledge and insight as we explore the latest legal affairs news stories of the week. Any final thoughts you’d like to touch on?

Michael T. Mulligan [00:20:29] Well, I think you have to keep a careful eye on whether the government gets to it on the Employment Standards Act and ensures that we have some protection for people if they need to spend time at home in a responsible way to keep other people healthy.

Automatically Transcribed on March 12, 2020 – MULLIGAN DEFENCE LAWYERS