Sources of Employment Law in Canada

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.