FAQs

Please note that our FAQs reflect general legal information about the law in British Columbia, Canada, and should not be treated as legal advice. The best way to get guidance on a specific legal issue is to contact a lawyer.

Do I have to get legal advice? Is legal advice necessary?

Answer: Whether you are seeking legal advice proactively or because a problem has already arisen, a lawyer can help you or your organization decide on the best course of action. Seeking legal advice proactively can often avoid costly financial risks from developing and seeking legal advice soon after learning of a problem can assist in defusing a difficult situation or minimizing damages. We recommend that you always obtain legal advice before you enter into an agreement. Do not sign an agreement without legal advice.

Is there any cost for an initial consultation with Overholt Law LLP?

Answer: After we determine the general nature of your inquiry and confirm we have no conflict in advising you, our services are provided for a fee. We are happy to discuss our billing arrangements with you at any time. As fees for legal expense for your organization or for you personally may be tax deductible, we recommend you hold on to copies of our invoices to raise with your accountant or tax lawyer come tax time.

How do you determine whether you have a conflict of interest?

Answer: We owe each of our clients a duty of undivided loyalty. It is important to us to determine properly prior to receipts of engagement, whether there is any risk of a conflict arising which would prevent us from discharging that duty. In order to assess whether there is the risk of a conflict, we need to understand the nature of all possible claims and the names of all organizations and individuals who would be adverse in interest to you. In this way we will be able to assess the likelihood of conflict arising.

What is the best way to prepare for an initial meeting with Overholt Law LLP?

Answer: If you are a business, we will need to know whether you are a corporation, partnership, proprietorship or other legal entity. We will require your proper legal name and any registration or identification number. If you are a proprietorship or seeking advice personally, we will require a copy of your driver’s licence.

We recommend that you prepare a written chronology or outline describing the background and identifying the facts and documents that are relevant to your inquiry. With this information, we will be able to respond efficiently to your inquiry. The written chronology may be useful in later referencing your recollection of the events and important discussions. Written statements that are either simultaneously made or written immediately following the event or incident may prove to be very helpful in the event of litigation.

Why is identification necessary?

Answer: The Law Society of BC and liability insurance carriers require us to take steps to know our client and to maintain good records of each engagement.

Can Overholt Law LLP represent more than one client in connection with the same matter?

Answer: It may be possible to do so after we understand the nature of the matter. Any joint engagement would be done by a written agreement stipulating the terms of the joint engagement and our adherence to the Law Society of BC Rules.

Is our discussion confidential?

Answer: Yes, our discussions with you are privileged and strictly confidential. Overholt Law LLP has invested in a good technological infrastructure. In establishing Overholt Law LLP, we obtained advice on firewalls to ensure the confidentiality of our communications with our clients.

Does the BC Employment Standards Act (the “ESA”) apply to all employees in British Columbia? Where can I find reliable information about the Employment Standards Act?

Answer: Section 3 of the ESA states that the ESA applies to all employees other than those excluded by the Employment Standards Regulation. You can find a list of specific types of work that are not covered by the ESA in section 32, subsections (1)(a) through (g) of the Employment Standards Regulation. For example, Union workplaces, independent contractors, and some members of professional associations are excluded from the application of the ESA.

You can find more information about the ESA by searching “Guide to the Employment Standards Act and Regulation”, available online. The Employment Standards Regulation is also available online, here.

What is the difference between “with cause” and “without cause” termination?

Answer: When an employee is found guilty of serious misconduct that makes the continuation of the employment relationship impossible, his or her employment can be terminated immediately “with cause” in British Columbia. If the termination does not arise out of conduct amounting to “cause”, then it is “without cause.”

A termination “without cause” requires that the employer provide the employee with notice of termination and/or payment in lieu of notice at least in the amount required by the applicable employment standards legislation (in BC, the ESA). However, where an employer has just cause for the termination of an employee’s employment, the employee can be dismissed without notice or pay in lieu of notice.

What is a “wrongful dismissal”? What makes a dismissal “wrongful”?

Answer: A claim in wrongful dismissal arises when an employee has not received proper notice or pay in lieu of notice upon the termination of employment based on the legal requirements.

What is the difference between “working notice” and “pay in lieu of notice”?

Answer: An employee who is terminated without cause is entitled to working notice, payment in lieu of notice, or a combination of the two. Payment in lieu of notice is the payment, or severance pay, made to the employee following the termination of their employment. Working notice is notice to the employee that their employment will be terminated on a certain future date, until which the employee’s pay and benefits will continue as normal.

For example, if an employee is entitled to 8 weeks’ notice, an employer can either pay out that amount upon terminating the employee’s employment, or have the employee work those 8 weeks.

What is “severance pay”? How much severance pay am I entitled to upon dismissal?

Answer: Generally speaking, severance pay is a form of compensation provided to an employee by their employer when the employee’s employment is terminated without cause (i.e., no fault of their own) and adequate notice of termination is not provided to the employee.

There are three important sources that will determine how much severance pay an employee will receive upon dismissal: the applicable employment standards legislation, the employment contract between the parties, and the common law.

In BC, the ESA provides some minimum statutory standards for severance payable to employees – which is referred to as “termination pay” in that legislation. Under the ESA, an employee must have completed a minimum of three months of continuous employment with the employer to qualify for statutory termination pay.

The amount of statutory termination pay that an employee will receive depends on their length of service. The ESA lays out the minimum amount of termination pay that an employee is owed as follows:

- After serving three consecutive months of employment, an employee is entitled to one full week’s pay as severance;
- After twelve consecutive months of employment, an employee is entitled to two full week’s pay;
- After three consecutive years of employment, an employee is entitled to three full week’s pay; and
- After each additional year of employment, an employee is entitled to an additional week’s full pay, to a maximum of 8 weeks of pay in total.

Employers can restrict the severance owed to employees to these ESA minimums using a properly worded termination clause in the employment contract. It is also common for employers and employees to agree to some other specific amount of severance in the employment contract. Whether an agreement is properly worded will depend on the exact employment contract and can be confirmed by seeking legal advice.

In certain circumstances, a person may have a legal claim to what is called “common law” notice or pay in lieu of notice, which is also referred to as “reasonable notice”. In order to determine whether a person has a claim to reasonable notice, and how much, the Courts will perform a nuanced analysis of various factors. Legal advice is strongly recommended.

What is a “Release”? In what circumstances can my employer ask that I sign one?

Answer: A “Release of Claims” is a legal document. By signing a Release, an employee typically gives up their right to make any claims against their employer following the termination of their employment. In British Columbia, the employer must provide the employee more than the employee’s minimum entitlement under the ESA or the stipulated notice under their employment contract in order for the Release to be valid.

What is constructive dismissal?

Answer: In most situations where an employer dismisses an employee, they will expressly tell the employee that they are dismissed. Constructive dismissal is a distinct legal claim that may arise if an employee is not necessarily told that their employment is ending but the facts are such that there was a termination of the employment contract. This could involve a situation where an employer either unilaterally makes a significant change to the terms of someone’s employment that is not agreeable, or embarks on a pattern of conduct that shows their intention to no longer follow the employment contract.

Constructive dismissal claims are complicated and can be risky. In most cases, the employee must leave their employment in order to establish constructive dismissal. We strongly encourage employees who have questions about whether they have been constructively dismissed to contact us for more information and advice.

Can my employer terminate my employment without cause while I am on medical leave?

Answer: Under British Columbia’s Human Rights Code, employers cannot discriminate against employees on the basis of mental or physical disability. This can include restricting an employer’s ability to terminate somebody’s employment during a medical leave. However, there are some circumstances where an employment contract with an employee who is on medical leave may end, such as where the employment contract has been frustrated by an extended leave. This is very fact-dependent.

I am thinking of resigning. Should I provide my employer with a notice of resignation?

Answer: Employers may require employees to provide a certain amount of notice of resignation in their employment contracts. Even if this is not addressed in the employment contract, at common law, employers may also be entitled to a reasonable amount of notice to allow them to replace an employee – particularly in cases where the employee is a key employee who is vital at that particular time. The amount of notice of resignation that is necessary will depend on the terms of the contract and an analysis of the facts at play.

Are all employees entitled to overtime pay?

Answer: No, not all employees are entitled to overtime pay. The British Columbia Employment Standards Act and Regulation include a variety of exceptions to the general rule about overtime. For example, managers, professionals who are members of certain regulatory bodies (including lawyers), and certain types of employees in the mining, logging, and fishery industries are not generally entitled to overtime pay. Employers and employees may also be able to come to alternative agreements about the payment of overtime, subject to applicable legal requirements.

I am an employer. Why is it important that I provide my employees with a written employment contract?

Answer: It can be tempting to save time and energy in the short-term by agreeing verbally to the terms of employment or coming to a “handshake” deal. However, well-written employment contracts protect both the employees and the employer by providing clear guidance to both parties about their expectations and obligations. Employers will benefit in the long-term from clearly documenting the hours of work, duties, compensation (including clear requirements to earn bonuses or commissions), types of actions or conduct that may justify just cause for dismissal, and the amount of notice or payment in lieu of notice that the employee will receive if their employment ends.

I have an issue with my employer but I don’t think my union is helpful. Can I hire a lawyer?

Answer: Being in a union means that the union is your representative in matters involving the employer. The union has a long-term relationship with your employer and will generally be best placed to advise you about the specific terms of your collective agreement. In most cases, a union employee cannot hire a lawyer to represent them against the employer. There are some rare situations where a lawyer can advise if you have a claim against your union or might be helpful in giving you a second opinion, but these are very limited.

What is the difference between an employee and an independent contractor?

Answer: The difference between an employee and an independent contractor is a legal question that needs to be considered on a case-by-case basis. Put simply, the difference usually comes down to the level of control and dependence between the parties. An independent contractor is more likely than an employee to have independent control of their time and resources, flexibility in how they perform their work, and the ability to work for multiple businesses.

However, independent contractors are also responsible for their own tax remittance, insurance and benefits, and may not be able to access certain legal protections available to employees. While employees may receive a certain amount of notice of termination of the employment relationship without cause, independent contractors may not be entitled to receive any or very much notice, depending on the circumstances.