Article by: Katelin Dueck + Mike Hamata
Previously printed in BarTalk; a Canadian Bar Association, BC Branch publication.
2020 was full of surprises, and 2021 continued to bring new challenges for the profession. Our corner of toil in the legal vineyards was not immune. For labour and employment lawyers, 2021 at times felt like a treadmill of legislative change, workplace vaccination policies (do not call it a mandate unless employers are forcibly injecting employees…), and helping employers plan to keep their workplaces safe.
Vaccination against COVID-19 became available to most adults in BC by the spring of 2021. As a result, many employers implemented workplace vaccination policies. Enforcement of these vaccination policies has and continues to create litigation risk that in a legislative vacuum, employers are unfortunately left to shoulder. Human resources professionals have been bogged down by novel (sometimes spurious) accommodation requests and the unfortunate departure of some non-complying workers has created an extra burden on the remaining workforce.
The postponement of hearings in the spring of 2020 has meant that the Human Rights Tribunal is working through a massive backlog of complaints and applications, including a plethora of anti-masking complaints (one assumes that anti-vaccination complaints have found their way to the Tribunal in a similar volume). Many pre-pandemic applications are still waiting to be adjudicated. In an unprecedented (sorry) response, the Tribunal has, on a temporary basis, announced it will not accept any new applications to dismiss in most circumstances. This announcement was a blow to those lawyers practising in the area who rely on applications to dismiss as a cost-effective and efficient way to deal with unmeritorious human rights complaints. What that step ultimately does to the backlog of files at the Tribunal will continue to be news throughout 2022.
Most labour arbitrations have successfully transitioned to video proceedings, which is a feature we hope sticks around for good. The labour bar has proven to ourselves that we can do it, so why stop? Arbitrations often lend themselves to video hearings, and the cost savings with respect to travel to remote union towns around the province have improved access to justice for unions and employers alike. However, like most other practice areas, shifting social, political, legal, and medical sands have made it feel like we are all still off-roading with respect to many substantive legal issues.
In addition to all the regular challenges of practice, we (like all others in BC) continue to work through the challenges of isolation of work from home, the screen fatigue of video conferencing, and the stress of trying to stay healthy and happy during a pandemic.
In law school and during pre-COVID practice we learned to find and rely on precedents. We are surely not alone in longing for “precedented” times after two years filled with much uncertainty. However, in all of the unknown, there is something of which we are sure. We got through 2020 and 2021. We will get through 2022.
Looking ahead, we believe there is reason for optimism. This profession is adaptable. We have experienced great support and camaraderie within our provincial cohort of employment and labour lawyers. There is more economic stability than in mid-2020. Our clients have identified creative solutions to many of their pandemic problems. Delays at the Tribunal and courts have incentivized productive mediations.
The challenges and changes we have experienced in 2021 will provide the foundation we need to persevere and thrive in 2022. Wishing you all the best in the year ahead.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.