british columbia

New BC Legislation Declares its “Your Body, Your Choice – Even Online™”

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Last Monday, March 6, 2023, our Attorney General Niki Sharma gave first reading to the Intimate Images Protection Act, a bill that enables British Columbia to reclaim control over their intimate images online.

The Attorney General began her introduction of the Bill by pointing out that it can be normal for intimate, consenting partners to share nude or nearly nude sexualized images. However, she stated, when those images are shared non-consensually, “it is a devastating form of sexualized violence that disproportionately impacts young people, women, girls and gender-diverse people.” Distributing intimate images without consent strips a person of their privacy and autonomy, and the consequences can be severe, far-reaching, and long-lasting.

The proposed Intimate Images Protection Act would give persons who have experienced the harm of having their intimate images distributed without consent the ability to stop the distribution by applying for an expedited intimate image protection order from BC’s Civil Resolution Tribunal or Supreme Court. If the applicant for an order advises the tribunal or court that they are the person in the image and that they do not consent to the image being shared, the tribunal or court can order that the person who distributed the image destroy and delete it, and make all reasonable efforts to make the image unavailable to others. The tribunal or court can also order that any “internet intermediaries” (such as google, onlyfans, etc) remove the image, delete or destroy it, and de-index it from internet search engines.

And when it comes to consent, there is a provision in the Bill which affirms that consent can be revoked. Even if at one time, the person in the image told the distributor they consented to the image being shared, the legislation affirms the ongoing nature of consent – it can always be revoked. If you consented years ago to your image being shared and you now want it taken down from the internet, that is your right. You need only advise the distributor of your image and the tribunal that you do not consent to it being shared.

The Bill makes it unlawful not only to share intimate images without consent, but to threaten to share those images. If someone is threatening to distribute a person’s intimate image without their consent, that person can also apply for an order that the one making the threats refrain from sharing the image and delete and destroy the image.

Orders made by the tribunal or court are binding on whoever they are directed at. If the order is made at the civil resolution tribunal, it can be filed at the Supreme Court and enforceable as if it is an order of the Supreme Court. That means those who do not obey these orders could end up in contempt of court, which carries serious legal repercussions.

Privacy is of course a concern with this legislation. Thus, in most cases, there is an automatic publication ban provision for applicants aimed at providing reassurance that taking legal action will not result in their name being shared publicly. Distributors of intimate images are not protected from the publication ban unless they are a minor or the court or tribunal sees other reasons for protecting their identity.

Provisions in the Bill allow persons who have had their intimate images distributed non-consensually or received threats that their image will be distributed to apply to the tribunal or court for damages. That means that if the legislation comes into force, you can claim that a distributor of your intimate image pay you compensation for having done so. You can also claim compensation if they only threaten to distribute the image

One interesting thing about the legislation is that if it comes into force, it will be retrospective. Wrongdoers are on notice as of last Monday that their conduct is unlawful if they are distributing intimate images non-consensually. Those depicted in images will be able to apply for orders after the legislation comes into force for any wrongdoer conduct that is occurring right now. The Attorney General stated the following about this: “people who distribute or threaten to distribute intimate images without consent are on notice that they will face new legal consequences even if the wrongful conduct happens before the legislation comes into force.”

Since the Bill has been introduced for First Reading by the Attorney General, it is likely that it will actually come into force. New legislation in BC needs to go through a first, second, and third reading at the legislative assembly before it receives royal assent and comes into force. Sometimes this process only takes a few weeks, sometimes it can take longer. Here’s hoping it comes into force soon.

Legislation Allows BC Employees Unpaid COVID-19-Related Leave

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On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

  1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
  2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
  3. the employer, due to a concern about exposing others, has directed the employee not to work;
  4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
  5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.

Covid-19 Raises Employment and Human Rights Concerns Across BC, Government Announces Novel Protections

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From both the employer and employee perspectives, the coronavirus pandemic raises real concerns for folks’ health and livelihoods. While the world worries about humanity’s future, individuals worry about the futures of their families and businesses. To combat some of these concerns, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act in the interest of workers.

Given the complex nature of these issues and continual efforts to strike a balance between health, economic, and human rights concerns, there is a potential for an influx of employment and human rights law claims across BC. Employees terminated prior to the new legislation coming into effect, or despite it, may be entitled to severance above the minimum amounts required under the current legislation. And employees who are not accommodated or are terminated due to health issues, family obligations, ethnicity, or place of origin, may have claims under the BC Human Rights Code.

On Wednesday, March, 11, 2020, the World Health Organization (WHO) characterized the coronavirus as a pandemic. It stated that “there are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.” British Columbia (BC) has confirmed a total of 186 cases of the coronavirus in the province as of March 17, 2020, with seven people having perished.

Today, BC’s provincial health officer declared a public health emergency. This gave her the power to order that all bars and clubs are to close down, which she did. Numerous businesses have closed voluntarily across BC and Canada. British Columbians fear that a lack of travel restrictions on their neighbours in Washington State, one of the US hotspots for the virus, puts them at risk.

Prime Minister Justin Trudeau is currently self-isolating, due to his wife Sophie having tested positive for the virus. He stated on March 16 and 17, 2020 that as much as possible, folks should stay home. He assures Canadians that the federal government is working to keep businesses and employees afloat during this time of crisis and that while parents are working from home, they can “let their kids run around a bit in the house.” Measures are being put in place to speed up employees’ access to Employment Insurance benefits. And, as stated, Premier John Horgan assured British Columbians today that their jobs will be protected and amendments are coming to BC’s Employment Standards Act.

Of course, however, employers and employees are experiencing barriers as a result of the coronavirus pandemic. Employers are concerned about running debt, or worse, going out of business. As a result, some employers are terminating employees. Others are requiring employees to come to work in-person and due to that, may expose themselves and others to the risk of contracting the virus. There is also potential that employers could expose themselves to negligence lawsuits from those who contract the virus from other employees required to come to work, despite exhibiting symptoms.

Employees face difficult decisions about whether they should go to work in order to provide for themselves, or stay home according to federal and provincial recommendations. They are also dealing with taking care of their children, as many spring break and childcare programs have shut their doors. Today, BC Premier John Horgan announced school closures for the indefinite future, and parents have concerns about child care for the weeks, and possibly months, ahead.

Unfortunately, some employees even have concerns that they have been discriminated against for their ethnicity or place of origin and its assumed connection with the origins of the covid-19 pandemic.

From both the employer and employee perspectives, there is real concern here for folks’ livelihoods and well-being. We are facing a pandemic that has the potential to seriously effect the global population on an unprecedented level and we all have a moral duty to slow the spread of the virus. At the same time, people need to put food on the table and keep roofs over their familes’ heads. Bills continue to accumulate for everyone; rents and mortgages need to be paid.

The WHO, the Canadian federal government, and the provincial and territorial governments across Canada recognize the complex nature of these issues. According to the WHO, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.”

Given the complex nature of these issues and the continual efforts to strike that balance, there is a potential for an influx of employment law and human rights claims across BC.

One common misconception is that employers need a legitimate reason to terminate employees. This is not currently the case, although this may change with the upcoming employment standards legislation in response to covid-19. At present, employers are generally free to terminate employees without cause, so long as they are not breaching employment contracts, union obligations, or human rights laws. They only need to provide adequate notice, or adequate pay in lieu of notice. This will likely change soon with the novel legislation.

Another common misconception is that employees are only entitled to severance amounts required by the BC Employment Standards Act. The Courts have commonly awarded severance amounts greater than the minimum requirements in the legislation. For example, it is possible a court could award someone severance representing 3 months’ pay after they work for their employer for three years, despite the provincial legislation requiring employers to pay a minimum of only 3 weeks’ pay.

The BC Human Rights Code protects British Columbians from being discriminated against in their employment based on a physical or mental disability, their family status, their ethnicity, and their place of origin. This means that if an employee is terminated because they were unable to come to work as a result of being sick from the coronavirus, there is potential for a claim based on discrimination in the area of disability. Whether suffering from the coronavirus constitutes a disability under the Human Rights Code is yet to be determined.

Given that many employees are having to stay home to take care of their children as a result of losing childcare, there is also the potential for discrimination claims based on family status. There are limits on an employer being able to terminate an employee due to their having to meet family childcare obligations.

Lastly, employees terminated due to an assumed connection between their ethnicity or place of origin and the origin of the coronavirus pandemic may also have been wrongly discriminated against under the BC Human Rights Code.

MacIsaac & Company recognizes the complex nature of employment and human rights law concerns in the face of this pandemic. We remain available to help you navigate these issues during this challenging time.