Sources of Employment Law in Canada

Questions and Answers

Which federal employment statute is primarily concerned with the safeguarding of personal information?

Employment Equity Act

Personal Information Protection and Electronic Documents Act (PIPEDA) (correct)

Canada Labour Code

Canadian Human Rights Act

What does the notwithstanding clause (section 33) of the Canadian Charter of Rights and Freedoms allow?

It enforces employment standards in non-union workplaces.

It guarantees rights against unfair dismissal in employment.

It permits certain laws to operate despite conflicting Charter rights. (correct)

It helps litigate disputes about contracts.

What is the primary function of contract law in the context of employment?

To regulate contractual relationships and terms in non-union employment. (correct)

To handle wrongful termination cases.

To govern collective bargaining processes.

To manage employment-related torts.

Which of the following statements is NOT true regarding federal employment law in Canada?

Federal employment law applies universally across all provinces. Signup and view all the answers

What is the principle of stare decisis in the context of common law?

It states that higher court decisions must be followed by lower courts. Signup and view all the answers

Which section of the Canadian Charter of Rights and Freedoms is considered most significant from an employment rights perspective?

Section 15 Signup and view all the answers

What encompasses tort law in the context of employment?

Civil remedies for wrongs that may be deliberate or negligent. Signup and view all the answers

Which of the following is a limitation of federal employment laws in Canada?

They strictly apply to industries of national importance. Signup and view all the answers

What is the employer's duty regarding accommodation for employees?

To accommodate to the point of undue hardship. Signup and view all the answers

What should recruitment advertisements avoid including?

Qualifications that exclude members of protected groups. Signup and view all the answers

When can employers ask about prohibited grounds during an interview?

Only if it relates to a bona fide occupational requirement. Signup and view all the answers

At what stage should employers request information that may disclose inclusion in a protected class?

After a conditional offer of employment. Signup and view all the answers

Why might pre-employment alcohol and drug testing be considered discriminatory?

Substance dependencies are considered forms of disability. Signup and view all the answers

What is the recommended practice for job-related skill tests?

They should be direct and avoid any discriminatory requirements. Signup and view all the answers

Which of the following is a common liability during recruitment?

Automatically screening out overqualified candidates. Signup and view all the answers

What is a proper protocol for pre-employment medical or fitness exams?

They should take place only after a conditional offer of employment has been made. Signup and view all the answers

What is the role of employment agencies in recruitment concerning human rights?

They must follow human rights requirements strictly. Signup and view all the answers

Which of the following practices in job advertising may perpetuate the status quo?

Using word-of-mouth advertising. Signup and view all the answers

Which of the following is NOT one of the three basic elements necessary to create a contract?

Enforcement Signup and view all the answers

What is a primary advantage of a written employment contract?

It reduces risk of misunderstandings Signup and view all the answers

Which of the following is included in common contractual terms?

Notice of Resignation Signup and view all the answers

What term refers to the provision that protects employees from being unjustly terminated?

Termination for Cause Signup and view all the answers

What should employers consider when customizing employment contracts?

Address the specific needs and roles of individual employees Signup and view all the answers

What type of misrepresentation by a job candidate may justify dismissal for cause?

False statements suggesting dishonesty Signup and view all the answers

In which situation may an employer be liable for negligent misrepresentation?

The candidate relied on misleading information during hiring Signup and view all the answers

Which step should employers take to avoid liability during the pre-employment stage?

Ensure all pre-employment information is accurate Signup and view all the answers

What should employers refrain from during interviews?

Guessing answers to unknown questions Signup and view all the answers

What is a recommended practice during interviews to enhance accountability?

Have at least two employees attend each interview Signup and view all the answers

What can make oral representations void in an employment contract?

Signing the written employment contract Signup and view all the answers

What characterizes aggressive recruiting?

Offering candidates high salaries without basis Signup and view all the answers

What type of misrepresentation is NOT typically grounds for dismissal?

Negligent misstatements Signup and view all the answers

Which case relates to employer liability for fraudulent misrepresentation?

Feldstein v 364 Northern Development Corporation Signup and view all the answers

What is a crucial factor in confirming the job description to candidates?

Providing a detailed compensation package Signup and view all the answers

What may an employee be entitled to if inducement is shown and they are subsequently dismissed?

Larger award for wrongful dismissal damages Signup and view all the answers

Which of the following practices should employers avoid when attracting new employees?

Tying a signing bonus to job acceptance Signup and view all the answers

What is a restrictive covenant primarily designed to do?

Limit competition with former employers Signup and view all the answers

What must an employee show to be successful in an action for anticipatory breach of contract?

An offer was made and subsequently repudiated Signup and view all the answers

Under which conditions can non-competition clauses still be valid after the 2021 amendments to the Employment Standards Act?

When the seller of a business becomes an employee of the buyer Signup and view all the answers

What might an employer face liability for in the case of negligent hiring?

Failing to verify candidate information Signup and view all the answers

What is not a recommended practice for employers when drafting an employment contract?

Recommending the candidate contact their previous employer Signup and view all the answers

What is a potential consequence of an employee showing inducement and then being dismissed?

They may claim larger wrongful dismissal damages Signup and view all the answers

How do restrictive covenants affect employees in relation to their former employers?

They limit the ability to use confidential information Signup and view all the answers

What is required to prove anticipatory breach of contract?

Repudiation of a contract after acceptance Signup and view all the answers

What is one of the main advantages of having a written employment contract?

It reduces the risk of misunderstandings. Signup and view all the answers

Which of the following terms is typically included in a written employment contract?

Job Description Signup and view all the answers

Which of the following is a reason employers might customize employment contracts?

To address specific needs of individual employees. Signup and view all the answers

What is required for an individual to be considered an employee in a wrongful dismissal action?

Employment contract signing Signup and view all the answers

Which of the following is NOT a common contractual term in employment agreements?

Holiday preferences Signup and view all the answers

Which of the following identifies a key element of the Meiorin three-part test for BFOR?

Is the rule adopted for a legitimate business purpose? Signup and view all the answers

What does the 'Entire Agreement Clause' in a contract signify?

It states that the written contract is the complete understanding between the parties. Signup and view all the answers

What is the primary function of administrative tribunals within the judicial framework?

Making decisions in specialized areas Signup and view all the answers

What key change will the Digital Platform Workers’ Rights Act, 2022 introduce?

New protections for gig workers Signup and view all the answers

What does the term 'agent' refer to in an employment context?

Someone who represents a principal in dealings Signup and view all the answers

How has the definition of discrimination evolved in employment law?

It includes both intentional and unintentional acts. Signup and view all the answers

What prerequisite must a rule or requirement fulfill to be considered necessary according to the Meiorin test?

It must not create undue hardship for the employer. Signup and view all the answers

Which aspect of human rights legislation applies to the actions of corporations?

Discrimination laws that extend beyond individuals Signup and view all the answers

What do civil remedies under Alberta's Human Rights Code imply?

They focus on compensation rather than criminal justice. Signup and view all the answers

Which of the following is NOT a ground of discrimination prohibited by Alberta's Human Rights Code?

Entrepreneurial status Signup and view all the answers

At which stage of employment does Alberta's Human Rights Code provide protection?

Every stage of the employment relationship Signup and view all the answers

Which exemption allows certain organizations to discriminate under Alberta's Human Rights Code?

Special Service Organizations Signup and view all the answers

What does the concept of 'undue hardship' relate to in terms of discrimination provisions?

It justifies discrimination when accommodating would be excessively burdensome. Signup and view all the answers

What is a primary focus of Alberta's Human Rights Code regarding intent?

Effect of the action matters more than intent. Signup and view all the answers

Which of the following statements is true regarding the application of Alberta's Human Rights Code?

It prevails over conflicting statutes unless specified otherwise. Signup and view all the answers

Which of the following types of discrimination is specifically covered by Alberta's Human Rights Code?

Discrimination due to association with another person Signup and view all the answers

What must employers do to comply with Alberta's Human Rights Code during the hiring process?

Establish essential duties of the position. Signup and view all the answers

What should an employer do to comply with the Consumer Reporting Act when conducting a credit check?

Obtain consent from the applicant prior to conducting the check. Signup and view all the answers

Which type of employee is typically not entitled to termination notice or pay in lieu of notice?

Temporary employees Signup and view all the answers

When is it recommended to conduct most types of background checks?

After a conditional offer of employment is made. Signup and view all the answers

What is required for police records checks during hiring?

The candidate's informed consent. Signup and view all the answers

What is a major risk of using internet and social media searches for information on candidates?

They may result in inaccurate or biased information. Signup and view all the answers

What type of employment does not typically distinguish between employees under employment statutes in Ontario?

Temporary employees Signup and view all the answers

What is the extent of an employer's duty to accommodate employees?

To accommodate to the point of undue hardship Signup and view all the answers

What role does verifying degrees play in the hiring process for certain positions?

It strengthens the employer’s duty to investigate qualifications. Signup and view all the answers

What should job advertisements avoid including?

Language that discourages protected groups Signup and view all the answers

When can employers include questions about prohibited grounds in an interview?

If related to a bona fide occupational requirement Signup and view all the answers

Why should background checks be conducted with caution?

They may infringe on privacy rights. Signup and view all the answers

At what point should a request for information possibly disclosing a protected class be made?

Only after a job offer is made Signup and view all the answers

What type of worker is classified as agency/temps?

Workers recruited through a staffing agency. Signup and view all the answers

What should employers do to avoid potential liability during pre-employment checks?

Ensure background checks are comprehensive. Signup and view all the answers

Why might alcohol and drug testing before employment be considered discriminatory?

Substance dependencies are classified as disabilities Signup and view all the answers

What is the recommended practice regarding tests that measure job-related skills?

They must not contain discriminatory requirements Signup and view all the answers

What should employers do concerning candidates they consider overqualified?

Consider them without bias Signup and view all the answers

When should pre-employment medical or fitness exams occur?

Only after a conditional offer has been made Signup and view all the answers

What can employers be expected to do if a candidate tests positive for substances?

Prepare to accommodate the candidate Signup and view all the answers

What is a primary responsibility of employment agencies in recruitment?

To comply with human rights requirements Signup and view all the answers

Study Notes

Sources of Employment Law

Federal employment law is limited to industries deemed of national importance per the Constitution Act, 1867.
Key federal employment statutes include the Canada Labour Code, Canadian Human Rights Act, Employment Equity Act, and PIPEDA.
The Canadian Charter of Rights and Freedoms, adopted in 1982, influences workplace dynamics, particularly through section 15 (equality) and section 33 (notwithstanding clause).
Common law, developed from court decisions, operates based on precedents established by higher courts.
Common law includes contract law and tort law, where contract law governs employment terms and conditions, while tort law addresses civil wrongs.

Judicial Framework

Employers must accommodate employees to the point of undue hardship, demonstrated through the balance of probabilities.

Recruitment, Selection, and Hiring

Employment agencies must adhere to human rights laws; broad advertising practices are encouraged to ensure inclusivity.
Job advertisements should not discourage applications from protected groups and must avoid prohibited questions.
Information that could reveal protected class status should be requested only after a conditional job offer is made.
Pre-employment medical exams and drug tests should occur after a conditional offer, as they may lead to discrimination claims.
Misrepresentation by candidates can be grounds for dismissal, while negligent misrepresentation by employers can lead to liability claims.

Areas of Common Law Liability

Misrepresentation by Job Candidates: Justifies dismissal for material inaccuracies but not for minor misstatements. Applications must include an attestation clause for honesty.
Wrongful Hiring: Employers may be liable for damages if misleading information leads a prospective employee to accept a job under false premises.
Inducement: Aggressive recruitment can lead to larger damages in wrongful dismissal if the employee is misled about job prospects.
Restrictive Covenants: Limit an employee’s ability to compete post-employment, with recent amendments to the Employment Standards Act affecting non-compete clauses.
Anticipatory Breach of Contract: Occurs when an employer retracts an offered job before employment begins, requiring proof of acceptance and resulting damages.
Negligent Hiring: Employers may face liability for failing to vet candidates, especially if an employee harms a third party.

Written Employment Contracts

Basic contract elements: offer, acceptance, and consideration. Oral agreements are binding if these elements are present.
Advantages of written contracts include clarity, reduced misunderstandings, and early resolution of contentious issues.
Customizing contracts for specific employees is crucial; standard contracts should be avoided to mitigate liability.

Common Contractual Terms

Essential clauses include job description, remuneration, and employment term details, such as termination processes.
Contracts should address resignation notice, probation periods, benefits, and any restrictive covenants or intellectual property ownership.
Additional considerations may include corporate policies and legal jurisdiction, ensuring all agreements are clear and lawful.

Judicial Framework

Administrative tribunals address specialized issues like employment standards and discrimination.
Administrative agencies can investigate complaints and rule on findings.

Defining the Employment Relationship

An individual could be an independent contractor for tax purposes but classified as an employee in wrongful dismissal claims.
The Digital Platform Workers’ Rights Act, 2022 offers protections for gig economy workers.
An agent represents a principal in dealings with third parties.

Human Rights Legislation in Canada

Provincial and territorial human rights laws regulate both individual and corporate actions.
All Canadian jurisdictions have human rights statutes that prohibit discrimination across key sectors.
Discrimination definitions broadened beyond intentional acts to include effects of actions.

Meiorin Test for BFOR/BFOQ

A three-pronged test assesses if a workplace rule is rationally connected to job performance, believed necessary for business purposes, and essential without causing undue hardship.

Alberta’s Human Rights Code

Applies to both sectors and individual conduct, prohibiting discrimination based on 16 grounds and including sexual harassment.
Intent to discriminate is not required; the effect is critical for assessment.
The Code prevails over conflicting laws barring specific exceptions.
Applies throughout the employment process, emphasizing recruitment.

Exemptions to Discrimination

Special service organizations may have allowances for discrimination.
Bona Fide Occupational Qualifications (BFOQ/BFOR) can justify certain employment decisions.
Discrimination may be allowed if proven reasonable or justifiable or if it causes undue hardship during accommodation.

Recruitment, Selection, and Hiring

Code protects job applicants and prohibits discrimination based on protected grounds, even if it's part of multiple reasons for hiring decisions.
Essential duties of positions must be clearly stated, with efforts made to accommodate needs without undue hardship.
Employment agencies must follow human rights guidelines, and for job ads, avoid language that discourages applicants from protected groups.
Pre-employment conditional offers should precede requests for sensitive information or medical examinations.

Areas of Common Law Liability

Employer duties to investigate potential harm increase with job-related risk exposure.
For roles requiring specific qualifications, direct verification with educational institutions remains crucial.
Background checks, including credit and police record checks, must be conducted with caution and informed consent.

Types of Employment Relationships

Employment types include permanent, temporary, casual, agency, and foreign workers.
Temporary employees generally lack entitlement to notice or pay upon termination.
Eligibility for Employment Insurance requires specific qualifying hours.

Written Employment Contracts

Contracts must include offer, acceptance, and consideration to be valid, with oral agreements being binding if properly constructed.
Written contracts mitigate misunderstandings, clarify critical terms, and reduce uncertainty.

Common Contractual Terms

Contracts should be customized for individual employees rather than using standard templates.
Essential terms cover job descriptions, remuneration, contract duration, and termination conditions.
Additional clauses may include relocation, remote work, benefits, restrictive covenants, and ownership of intellectual property.

Miscellaneous Contractual Provisions

Include clauses for notice of resignation, probationary periods, entire agreement, and inducement.
Provisions for severability, golden parachutes, and temporary layoffs or disciplinary suspensions are also included to ensure contract robustness.

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Description

This quiz explores the key sources of employment law in Canada, including federal statutes like the Canada Labour Code and the Canadian Human Rights Act. Additionally, it delves into the impact of the Canadian Charter of Rights and Freedoms on workplace dynamics and the role of common law in governing employment terms. Test your knowledge on the judicial framework surrounding employment law.