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The difference between information and advice

One individual’s experience, told here, provides an example of why you should be careful when you call the Ministry of Labour.

One individual’s experience, told here, provides an example of why you should be careful when you call the Ministry of Labour.

Following his termination, Scott Seltzer was given a termination package consisting of a three-week severance payment required by legislation and an offer for an additional payment in exchange for signing a release.

Instead of calling a lawyer, Seltzer called the B.C. Ministry of Labour for advice. Seltzer was told that in B.C. a worker “could not sign their legal rights away,” which is technically correct but practically misleading.

Each province has legislation that sets out minimum severance. Here, Seltzer was entitled to a minimum payment of three weeks’ salary. However, since Seltzer was entitled to more than just the minimum, his employer asked him to sign a release for the additional payments – which is an agreement not to later sue. Although this was an issue most employment lawyers would spot as a matter of course, the Ministry representative failed to clarify the distinction.

Relying on what he was told, Seltzer mistakenly thought he had nothing to lose by signing the release, believing he could take the extra money and then challenge his employer for more. However, when he later made a human rights complaint, his claim was dismissed at a preliminary hearing because of the release he had signed. Why did this happen and how could it be avoided?

Most provincial employment ministries in Canada have hotlines for employees to call to obtain information about their rights. The problem is that this information is often construed as “advice,” since advice is often inappropriately dispensed by the ministry representatives who answer the phone. And, since most people will believe, even if incorrectly, that they received advice from a government body, they are unlikely to later pay for a lawyer's time to obtain a second opinion.

This example is not an exception. The ministry representatives should explain only what the legislation says and how it was interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when some of the representatives habitually blur this distinction. When they do, the public's interests may be subverted.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. Dan@toronto-employmentlawyer.com.

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