Sources of Employment Law
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Questions and Answers

What must union organizers provide during the certification process?

  • Union membership lists
  • Employment contracts
  • Financial records
  • Minimum level of support (correct)

    • Which of the following is NOT a part of the collective bargaining process?

  • Bargaining in good faith
  • Serving notice of intent to bargain
  • Filing a grievance with the LRB (correct)
  • Requesting a mediator

    • What occurs if bargaining breaks down between the union and employer?

  • The LRB will decide the outcome immediately
  • The union automatically wins
  • Negotiations are terminated indefinitely
  • Job action can commence (correct)

    • What is a peace obligation in relation to a collective agreement?

    <p>Prohibits strikes and lockouts (B)</p> Signup and view all the answers

    What does a collective agreement provide for the parties involved?

    <p>A framework for dispute resolution (C)</p> Signup and view all the answers

    What is statute law primarily authored by?

    <p>Parliament and legislatures (A)</p> Signup and view all the answers

    Which of the following steps is NOT part of the process for public bills?

    <p>Royal assent for corporate changes (D)</p> Signup and view all the answers

    What aspect distinguishes private members’ bills from public bills?

    <p>They are introduced by private members of the legislature. (D)</p> Signup and view all the answers

    What do statutes contain in relation to law?

    <p>The main requirements of the law (D)</p> Signup and view all the answers

    Who interprets legislation during the adjudication of cases?

    <p>Judges and members of administrative tribunals (A)</p> Signup and view all the answers

    What is meant by jurisdiction in the context of legislation?

    <p>The geographical area a statute covers (D)</p> Signup and view all the answers

    Which interpretation rule focuses on the original intent of a statute?

    <p>Mischief Rule (B)</p> Signup and view all the answers

    What characterizes fraudulent misrepresentation?

    <p>A statement is known to be untrue and relied upon to one's detriment. (D)</p> Signup and view all the answers

    What liability does an employer have regarding the actions of a recruitment firm?

    <p>Liable for breaches and misrepresentation made by the search firm. (B)</p> Signup and view all the answers

    What is an example of inducement in recruitment?

    <p>Using false information about company culture. (C)</p> Signup and view all the answers

    What does a restrictive covenant prevent?

    <p>Exploiting client relationships and confidential information. (B)</p> Signup and view all the answers

    Which of the following is NOT an example of a restrictive covenant?

    <p>Re-employment clause. (B)</p> Signup and view all the answers

    What could an employee be compensated for due to inducement?

    <p>Costs related to moving or buying a house. (C)</p> Signup and view all the answers

    What defines a post-employment obligation?

    <p>An agreement preventing competition after the employment ends. (A)</p> Signup and view all the answers

    Which of the following is a key aspect of reducing exposure when using a recruitment firm?

    <p>Careful selection and setting clear boundaries. (B)</p> Signup and view all the answers

    What best describes the term 'allurement' in the job recruitment context?

    <p>Using deceptive promises to attract candidates. (B)</p> Signup and view all the answers

    What must a restrictive covenant protect to be considered valid?

    <p>A legitimate proprietary interest of the employer (D)</p> Signup and view all the answers

    Which of the following is NOT a condition for the validity of a restrictive covenant?

    <p>Being beneficial to competitors (B)</p> Signup and view all the answers

    Who bears the burden of proof for the reasonableness and validity of a restrictive covenant?

    <p>The employer (B)</p> Signup and view all the answers

    What happens to a restrictive covenant if an employee is wrongfully dismissed?

    <p>It ceases to bind the employee (B)</p> Signup and view all the answers

    In which scenario might an anticipatory breach of contract occur?

    <p>When an employer retracts an offer without cause (A)</p> Signup and view all the answers

    What is required for a restrictive covenant to be considered reasonable?

    <p>It must be limited in duration and geographic scope (A)</p> Signup and view all the answers

    What reflects the appreciation for the imbalance in bargaining power in employment contracts?

    <p>Resolving doubts in favor of the employee (A)</p> Signup and view all the answers

    Which aspect is essential to avoid making a restrictive covenant overly broad?

    <p>It should be directed at specific products or geographic locations (D)</p> Signup and view all the answers

    What does it mean when the employment contract is declared 'repudiated'?

    <p>One party breaks the contract before employment begins (A)</p> Signup and view all the answers

    What typically dictates the validity of a restrictive covenant related to public interest?

    <p>The competitive impact on the employer's business (D)</p> Signup and view all the answers

    Which of the following is a factor that contributes to the increasing use of temporary employment agencies?

    <p>All of the above (D)</p> Signup and view all the answers

    What is the legal term used to describe the process of engaging individuals or personnel through temporary employment agencies?

    <p>Leasing (D)</p> Signup and view all the answers

    Which of the following is NOT mentioned as a factor influencing the legal classification of an individual as an employee?

    <p>The duration of the contract (B)</p> Signup and view all the answers

    What is an essential attribute for minimizing the risk of an Independent Contractor (IC) being deemed an employee?

    <p>Ensuring the IC has the right to accept or refuse work (C)</p> Signup and view all the answers

    Which of the following is NOT a characteristic of a typical independent contractor (IC) relationship as described in the text?

    <p>The IC receives statutory deductions (C)</p> Signup and view all the answers

    Which of the following is a category of employee typically referred to in organizations?

    <p>Casual (D)</p> Signup and view all the answers

    What is the primary factor courts consider when determining who is ultimately responsible for remuneration, despite who signs the check?

    <p>The source of funds (B)</p> Signup and view all the answers

    Which of the following is NOT an organizational practice that can help to reduce the risk of an IC being classified as an employee?

    <p>Implementing clear performance review processes (B)</p> Signup and view all the answers

    What is the main purpose of an indemnity clause when engaging independent contractors?

    <p>To protect the client organization from potential liability associated with the contractor's actions (D)</p> Signup and view all the answers

    What is the primary responsibility of labor law, as discussed in the text?

    <p>Ensuring fair and equitable treatment of workers (C)</p> Signup and view all the answers

    What is a key aspect of the essential services agreement in relation to strikes?

    <p>It may require negotiation to determine its terms. (C)</p> Signup and view all the answers

    Which legislative change impacted worker rights in relation to unions?

    <p>The Charter began providing protection for unions in courts. (B)</p> Signup and view all the answers

    How did the interpretation of the freedom of association evolve from the 1980s to the 2000s?

    <p>The rights to form unions and bargain collectively were increasingly protected. (D)</p> Signup and view all the answers

    Which court case emphasized the importance of unions and strike activity?

    <p>RWDSU v Pepsi-Cola (C)</p> Signup and view all the answers

    What was a significant outcome of the labour trilogy interpretation during the 1980s-90s?

    <p>There was a narrow interpretation with minimal rights conferred on unions. (D)</p> Signup and view all the answers

    Which of these is NOT a key federal employment statute listed in the content?

    <p>Employment Standards Act (C)</p> Signup and view all the answers

    Which level of government in Canada holds jurisdiction over a larger percentage of employees?

    <p>Provincial government (B)</p> Signup and view all the answers

    What does the content describe as the primary function of a municipality in relation to employment law?

    <p>Enacting legislation that affects employers and employees (A)</p> Signup and view all the answers

    Which of these is NOT a key employment statute listed in the content for the province of Alberta?

    <p>Employment Equity Act (A)</p> Signup and view all the answers

    What is the main legal document that defines the structure of Canada's federal system?

    <p>Constitution Act, 1867 (formerly British North America Act) (A)</p> Signup and view all the answers

    What is the significance of the Canadian Charter of Rights and Freedoms in employment law?

    <p>It can invalidate legislation or government action that violates its principles. (C)</p> Signup and view all the answers

    Which of these statements accurately describes the content's approach to defining terms within the statute of employment law?

    <p>It acknowledges the importance of considering external aids and scholarly articles to understand legal terms. (C)</p> Signup and view all the answers

    What does section 15(1) of the Canadian Charter guarantee individuals?

    <p>The right to equal protection and benefit of the law without discrimination (B)</p> Signup and view all the answers

    In Vriend v Alberta, what was the issue concerning Alberta's human rights legislation?

    <p>It lacked provisions against discrimination based on sexual orientation. (B)</p> Signup and view all the answers

    Which principle is fundamental to the common law system?

    <p>Stare decisis ensures decisions are based on precedent (C)</p> Signup and view all the answers

    What do the principles of common law primarily rely upon?

    <p>Judicial decisions and established precedents (B)</p> Signup and view all the answers

    Which of the following statements best describes a key aspect of contract law?

    <p>An agreement requires an offer, acceptance, and consideration to be valid. (B)</p> Signup and view all the answers

    How does the Charter permit infringement of individual rights?

    <p>When it is considered a reasonable limit in a free and democratic society (C)</p> Signup and view all the answers

    What is the primary role of the employment law in relation to the Charter?

    <p>To challenge laws that infringe on Charter rights (A)</p> Signup and view all the answers

    What does not constitute a valid ground for claim under section 15 of the Charter?

    <p>Hair color (B)</p> Signup and view all the answers

    What is a key limitation outlined in the Charter concerning rights and freedoms?

    <p>Infringements must be reasonable limits in a democratic society. (D)</p> Signup and view all the answers

    What must a restrictive covenant demonstrate to be considered valid?

    <p>It protects a legitimate proprietary interest of the employer. (B)</p> Signup and view all the answers

    Which condition is NOT necessary for a restrictive covenant to be enforceable?

    <p>It must be mutually agreed upon by both employer and employee. (D)</p> Signup and view all the answers

    What is the burden of proof regarding the reasonableness of a restrictive covenant?

    <p>It is on the employer. (A)</p> Signup and view all the answers

    Under what situation might a restrictive covenant not hold an employee bound?

    <p>If they are found to have been wrongfully dismissed. (D)</p> Signup and view all the answers

    What does it mean for an employment contract to be declared as 'repudiated'?

    <p>One party has broken the contract before it begins. (C)</p> Signup and view all the answers

    Which of the following measures the limit on duration and location of a restrictive covenant?

    <p>It must be reasonable based on the employer's recovery timeline. (A)</p> Signup and view all the answers

    What is the primary public interest consideration regarding restrictive covenants?

    <p>Enhancing worker flexibility and mobility. (A)</p> Signup and view all the answers

    What factors can contribute to an anticipatory breach of contract?

    <p>A verbal offer was accepted but later revoked without reason. (C)</p> Signup and view all the answers

    Which of the following scenarios does NOT reflect a valid restrictive covenant?

    <p>An employee is limited from working in any industry. (C)</p> Signup and view all the answers

    What primary change did the labour movement enact in the employer-employee relationship?

    <p>It enabled workers to form unions for better negotiation. (C)</p> Signup and view all the answers

    Which feature characterizes the modern labour law established since the 1940s?

    <p>Employee right to form a union and strike. (D)</p> Signup and view all the answers

    What is a significant component of the Wagner Model?

    <p>Establishment of labour relations boards. (C)</p> Signup and view all the answers

    What is the first phase in establishing a union?

    <p>Organizing of employees. (B)</p> Signup and view all the answers

    What does the phrase 'duty to bargain in good faith' imply?

    <p>Employers are required to negotiate seriously with unions. (A)</p> Signup and view all the answers

    The process of certification in forming a union primarily serves what purpose?

    <p>To formally recognize the union as representative of the employees. (C)</p> Signup and view all the answers

    Which of the following prohibits unfair labour practices?

    <p>Wagner Act model. (D)</p> Signup and view all the answers

    What typically characterizes a collective agreement?

    <p>It serves as an enforceable contract between the union and employer. (A)</p> Signup and view all the answers

    What is the main benefit of unions backtracked by early employment legislation?

    <p>To empower workers by allowing them to organize. (A)</p> Signup and view all the answers

    Which of the following is NOT a factor that contributes to an employee being able to successfully sue an employer for wrongful hiring based on a misrepresentation?

    <p>The employee was able to prove that the employer intentionally made false claims. (A)</p> Signup and view all the answers

    A search firm that is hired to recruit candidates for a specific role can be held liable for misrepresentations made during the recruitment process. Which of the following statements is TRUE regarding the employer's liability in this situation?

    <p>The employer can be held liable for any misrepresentations made by the search firm, even if they were not aware of them. (C)</p> Signup and view all the answers

    The use of inflated promises or aggressive recruiting techniques that lure an employee to a new job is known as "inducement." What is a potential consequence for an employer who engages in such practices?

    <p>The employer may be required to pay the new employee additional damages for the tort of allurement. (D)</p> Signup and view all the answers

    Restrictive covenants are an important element in protecting an employer's business interests. Which of the following is NOT a common type of restrictive covenant?

    <p>Non-Disclosure Agreement (D)</p> Signup and view all the answers

    Which of the following statements is TRUE about the enforceability of a restrictive covenant?

    <p>Courts will generally only uphold restrictive covenants that are reasonable and necessary to protect the employer's legitimate business interests. (C)</p> Signup and view all the answers

    What is the primary function of a municipality in relation to employment law in Canada?

    <p>Ensuring that all employers comply with local employment regulations. (C)</p> Signup and view all the answers

    The "labour trilogy" refers to a series of landmark court cases that significantly impacted the interpretation of labor law in Canada. What was a significant outcome of this interpretation during the 1980s-90s?

    <p>A decrease in the power of unions and their ability to negotiate collective agreements. (C)</p> Signup and view all the answers

    Which of the following is NOT a key federal employment statute listed in the content?

    <p>Employment Standards Act (A)</p> Signup and view all the answers

    What best describes the impact of the Charter on worker rights following its introduction?

    <p>The Charter provides limited protection, requiring judicial interpretation. (D)</p> Signup and view all the answers

    Which scenario exemplifies a situation where certain workers may be prohibited from striking?

    <p>Firefighters responding to emergency calls. (B)</p> Signup and view all the answers

    How did the interpretation of freedom of association change from the 1980s to the 2000s?

    <p>It gained broader recognition, enhancing collective bargaining rights. (B)</p> Signup and view all the answers

    Which case highlighted the necessity of unions and strike activities in Canadian labor law?

    <p>Alberta v UFCW (2013) (A)</p> Signup and view all the answers

    What key right was notably emphasized in the labor trilogy during the 1980s-90s?

    <p>Limited interpretation of collective rights for unions. (C)</p> Signup and view all the answers

    What is one of the main features of modern labour law established since the 1940s?

    <p>Workers can form unions to negotiate on their behalf. (A)</p> Signup and view all the answers

    What model serves as the foundation of modern labour law since 1943?

    <p>The Wagner Act model (C)</p> Signup and view all the answers

    Which component of the Wagner Model ensures that unions are recognized legally?

    <p>Process for union certification (B)</p> Signup and view all the answers

    What does the term 'collective agreement' refer to within the context of labour law?

    <p>An enforceable contract between workers and employers. (D)</p> Signup and view all the answers

    During the union establishment process, what is the first stage when forming a union?

    <p>Organizing of employees (B)</p> Signup and view all the answers

    Which feature is NOT part of the Wagner Model?

    <p>Guarantee of annual wage increases for all employees (C)</p> Signup and view all the answers

    What essential function do Labour Relations Boards serve according to the labour model established?

    <p>Serve as a dispute resolution body (B)</p> Signup and view all the answers

    What legislative change occurred in 1925 regarding labor relations?

    <p>Provincial authority to regulate labor was established. (B)</p> Signup and view all the answers

    Which of the following elements is crucial for the enforcement of a collective agreement?

    <p>Contractual clarity and mutual agreement (A)</p> Signup and view all the answers

    What characterizes the economic sanctions unions are able to use?

    <p>They must align with union negotiation strategies. (A)</p> Signup and view all the answers

    Which of the following levels of government in Canada has the authority to pass legislation that affects employers and employees?

    <p>All of the Above (D)</p> Signup and view all the answers

    Based on the information provided, which of the following statements accurately reflects the relationship between the Canadian Charter of Rights and Freedoms and other legislation?

    <p>The Charter only applies to government actions and can override legislation that is inconsistent with its principles. (B)</p> Signup and view all the answers

    According to the content, which of the following is NOT a key federal employment statute in Canada?

    <p>Employment Standards Act (D)</p> Signup and view all the answers

    Which of the following BEST represents the primary purpose of 'external aids' in interpreting legislation related to employment?

    <p>To provide additional context and insights from scholarly sources and dictionaries to clarify the meaning of statutory terms. (B)</p> Signup and view all the answers

    Which of the following best describes the 'delegated authority' mentioned in the content, allowing municipalities to enact bylaws that affect employers and employees?

    <p>Provinces grant municipalities the authority to pass bylaws, but these must be consistent with provincial legislation. (B)</p> Signup and view all the answers

    Which of the following provinces does the content list as having a 'Human Rights Act'?

    <p>Alberta (C)</p> Signup and view all the answers

    What is the primary function of the Canadian Charter of Rights and Freedoms in relation to employment law, according to the provided information?

    <p>To ensure that government actions and legislation are consistent with fundamental human rights principles, including in the context of employment. (A)</p> Signup and view all the answers

    Which of the following is NOT a principle of the common law, as explained in the content?

    <p>Jurisdictional (C)</p> Signup and view all the answers

    What is the primary function of the 'notwithstanding clause' (section 33) of the Charter?

    <p>To allow the government to override certain Charter rights in specific circumstances (A)</p> Signup and view all the answers

    Based on the information provided about the Vriend v Alberta case, which of the following best describes the issue at the heart of the case?

    <p>Whether the omission of sexual orientation as a protected ground in Alberta’s human rights legislation breached the Charter's equality guarantee (D)</p> Signup and view all the answers

    Based on the information provided, which of the following is a key factor in determining whether an infringement of individual rights under the Charter is justified?

    <p>Whether the infringement serves a compelling public interest (D)</p> Signup and view all the answers

    According to the content, what does the common law define as 'residual'?

    <p>Laws that address areas not explicitly covered by statutes (C)</p> Signup and view all the answers

    The content mentions that the Charter has an impact on employment law. Which of the following best explains this impact?

    <p>The Charter can be used to challenge employment laws that violate individual rights (D)</p> Signup and view all the answers

    What is the primary distinction between the two branches of common law affecting employment – contract law and (the second branch mentioned in the text) – as explained in the content?

    <p>Contract law addresses the legal framework of agreements, while the second branch is more focused on the legal relationship between employer and employee. (D)</p> Signup and view all the answers

    Which of the following statements best reflects the significance of the Charter's impact on employment law?

    <p>The Charter serves as a fundamental framework that influences the development and application of employment laws (C)</p> Signup and view all the answers

    The content outlines the 'Principles of the common law'. Which of these principles is BEST described as a form of judicial precedent that is not legally binding, but can be persuasive to judges considering similar cases?

    <p>Persuasive (A)</p> Signup and view all the answers

    The Canada Labour Code (CLC) applies only to organizations operating in provincial jurisdictions.

    <p>False (B)</p> Signup and view all the answers

    The 'Labour Trilogy' refers to a set of cases that protect the rights of unions once formed.

    <p>False (B)</p> Signup and view all the answers

    In the content, freedom 'not to associate' was discussed in reference to a Supreme Court decision from 1991.

    <p>True (A)</p> Signup and view all the answers

    Future court cases are expected to challenge the strength of the new trend in union support outlined in recent decisions.

    <p>True (A)</p> Signup and view all the answers

    Part II of the Canada Labour Code focuses on Standard Hours, Wages, Vacations & Holidays.

    <p>False (B)</p> Signup and view all the answers

    Tort Law provides a remedy for civil wrongs such as defamation, negligence, or assault.

    <p>True (A)</p> Signup and view all the answers

    Damages may only be awarded for monetary loss in Tort Law.

    <p>False (B)</p> Signup and view all the answers

    Most employment statutes in Canada are administered by specialized commissions and boards.

    <p>True (A)</p> Signup and view all the answers

    Negligent misrepresentation by job candidates may justify dismissal if it indicates material untrustworthiness.

    <p>True (A)</p> Signup and view all the answers

    Employment-related legislation is primarily governed by federal law across Canada.

    <p>False (B)</p> Signup and view all the answers

    A wrongful hiring claim may involve negligent misrepresentation.

    <p>True (A)</p> Signup and view all the answers

    Minor deliberate misstatements by job candidates always justify their dismissal.

    <p>False (B)</p> Signup and view all the answers

    An employer is always liable for misrepresentations made by a recruitment firm acting on its behalf.

    <p>True (A)</p> Signup and view all the answers

    Fraudulent misrepresentation occurs when one party knowingly makes a false statement.

    <p>True (A)</p> Signup and view all the answers

    A restrictive covenant is valid only during the period of employment.

    <p>False (B)</p> Signup and view all the answers

    Inducement can involve aggressive recruitment techniques to attract potential employees.

    <p>True (A)</p> Signup and view all the answers

    A former employee can be restricted from competing with their former employer due to a valid non-compete clause.

    <p>True (A)</p> Signup and view all the answers

    Inducement damages can compensate employees for lost earnings and moving expenses.

    <p>True (A)</p> Signup and view all the answers

    Carefully selecting a recruitment firm can help reduce an employer's legal exposure to misrepresentation.

    <p>True (A)</p> Signup and view all the answers

    Confidentiality agreements are one type of restrictive covenant.

    <p>True (A)</p> Signup and view all the answers

    An employee can never receive damages for a misrepresentation made by the employer.

    <p>False (B)</p> Signup and view all the answers

    A restrictive covenant is valid if it protects a legitimate proprietary interest of the employer.

    <p>True (A)</p> Signup and view all the answers

    The burden of proof for the reasonableness and validity of a restrictive covenant lies with the employee.

    <p>False (B)</p> Signup and view all the answers

    A restrictive covenant can be considered overly broad if it restricts an employee from competing in all professional activities indefinitely.

    <p>True (A)</p> Signup and view all the answers

    Any covenant that restricts employee trade must serve a public interest for it to be valid.

    <p>True (A)</p> Signup and view all the answers

    Anticipatory breach of contract can occur if an employer withdraws a job offer without cause.

    <p>True (A)</p> Signup and view all the answers

    In the case of wrongful dismissal, a valid restrictive covenant remains enforceable against the employee.

    <p>False (B)</p> Signup and view all the answers

    Restrictive covenants can be valid if they last for an unreasonable duration.

    <p>False (B)</p> Signup and view all the answers

    An employee must be able to prove that a restrictive covenant is invalid.

    <p>False (B)</p> Signup and view all the answers

    An independent contractor (IC) should purchase their own insurance.

    <p>True (A)</p> Signup and view all the answers

    The employer is required to prove the legitimacy of its business interests to enforce a restrictive covenant.

    <p>True (A)</p> Signup and view all the answers

    Restrictive covenants must always be limited to a specific geographic location to be valid.

    <p>True (A)</p> Signup and view all the answers

    A temporary employment agency is responsible for the ultimate economic burden of remuneration.

    <p>False (B)</p> Signup and view all the answers

    ICs can have set hours of work imposed by their client organizations.

    <p>False (B)</p> Signup and view all the answers

    There is a formal legal distinction between full-time and part-time employees based on hours worked.

    <p>False (B)</p> Signup and view all the answers

    The trend to outsource non-core functions is decreasing in organizations.

    <p>False (B)</p> Signup and view all the answers

    An indemnity clause helps minimize risk when engaging independent contractors.

    <p>True (A)</p> Signup and view all the answers

    Independent contractors can work for multiple clients at the same time.

    <p>True (A)</p> Signup and view all the answers

    Agency employees are considered to act on behalf of their own organization.

    <p>False (B)</p> Signup and view all the answers

    Formal performance reviews are typically conducted for independent contractors.

    <p>False (B)</p> Signup and view all the answers

    Client organizations have full control over the hiring and dismissal of temporary employees.

    <p>False (B)</p> Signup and view all the answers

    A private member's bill has a higher chance of being passed than a public bill.

    <p>False (B)</p> Signup and view all the answers

    The Canadian Charter of Rights and Freedoms is a source of common law in employment law.

    <p>False (B)</p> Signup and view all the answers

    The 'mischief rule' for interpreting statutes focuses on the original problem the legislation was intended to address.

    <p>True (A)</p> Signup and view all the answers

    Regulations can be amended only by changing the relevant statute.

    <p>False (B)</p> Signup and view all the answers

    A public bill must pass through three readings before it becomes a statute.

    <p>True (A)</p> Signup and view all the answers

    Jurisdiction in relation to legislation only determines the geographic region to which it applies.

    <p>False (B)</p> Signup and view all the answers

    The preamble to a statute provides information about the legislation's intended application.

    <p>True (A)</p> Signup and view all the answers

    A strike vote must be held by a simple majority of union members.

    <p>False (B)</p> Signup and view all the answers

    An employer can lock out workers without a vote if they are part of an employer's association.

    <p>False (B)</p> Signup and view all the answers

    Strikers are allowed to enter private land to picket.

    <p>False (B)</p> Signup and view all the answers

    Communication of a message to the public, such as leafleting during a strike, is considered an illegal action.

    <p>False (B)</p> Signup and view all the answers

    Strikers are prohibited from peacefully picketing on public land.

    <p>False (B)</p> Signup and view all the answers

    Assaulting people with signs is considered an acceptable action during a strike.

    <p>False (B)</p> Signup and view all the answers

    Strikers are allowed to contact customers directly to influence their opinion on the strike.

    <p>False (B)</p> Signup and view all the answers

    Essential services, such as those that impact public safety, can strike or be locked out.

    <p>False (B)</p> Signup and view all the answers

    The Labour Relations Board (LRB) and the Minister of Labour can designate essential services.

    <p>True (A)</p> Signup and view all the answers

    All strike-related actions must be approved by both the union and the employer.

    <p>False (B)</p> Signup and view all the answers

    The "risk test" for determining employment status evaluates whether the worker has a financial investment in the business, allowing for potential profit or risk of loss.

    <p>True (A)</p> Signup and view all the answers

    A growing trend in employment settings is the use of independent contractors, particularly in non-unionized workplaces.

    <p>True (A)</p> Signup and view all the answers

    Independent contractors are entitled to the same employment standards protections as employees.

    <p>False (B)</p> Signup and view all the answers

    When deciding whether to classify someone as an employee or an independent contractor, the "control test" considers who supervises or controls the "how" and "why" of the work performed.

    <p>False (B)</p> Signup and view all the answers

    An advantage for the employer in engaging independent contractors is that they are not subject to common-law wrongful dismissal claims.

    <p>True (A)</p> Signup and view all the answers

    The "organization test" for determining employment status examines if the services provided are essential or supplementary to the business.

    <p>True (A)</p> Signup and view all the answers

    It's important for employers to conduct background checks that are extensive enough to prevent any third-party harm that is reasonably foreseeable.

    <p>True (A)</p> Signup and view all the answers

    Background checks should include an evaluation of the candidate's online presence, including social media profiles.

    <p>True (A)</p> Signup and view all the answers

    Having an Independent Contractor (IC) sign a contract clearly identifying their status as an IC is a way to minimize the risk of them being deemed an employee.

    <p>True (A)</p> Signup and view all the answers

    The "ownership test" to determine employment status is definitive in determining whether an individual is an employee or contractor.

    <p>False (B)</p> Signup and view all the answers

    Organizations should avoid setting hours for Independent Contractors (ICs) to reduce the risk of them being classified as employees.

    <p>True (A)</p> Signup and view all the answers

    The use of temporary employment agencies is expected to decrease in both the public and private sectors as organizations adapt to new business models.

    <p>False (B)</p> Signup and view all the answers

    When determining who is ultimately responsible for remuneration, courts focus solely on who signs the check, not on who carries the financial burden.

    <p>False (B)</p> Signup and view all the answers

    The text suggests that there are formal legal distinctions between employees based on their hours of work, such as full-time, part-time, and temporary.

    <p>False (B)</p> Signup and view all the answers

    When engaging an IC, requiring them to purchase their own insurance contributes to reducing the risk of them being classified as an employee.

    <p>True (A)</p> Signup and view all the answers

    An organization can minimize integration of an Independent Contractor (IC) by conducting formal performance reviews for the IC, similar to those for employees.

    <p>False (B)</p> Signup and view all the answers

    An indemnity clause is a contractual provision intended to protect the independent contractor from financial risks.

    <p>False (B)</p> Signup and view all the answers

    The term “leasing” refers to the practice of engaging individuals through temporary employment agencies, which is described as a growing trend.

    <p>True (A)</p> Signup and view all the answers

    Allowing an IC to work for others while performing work for the client organization is a standard practice that helps minimize the risk of the IC being deemed an employee.

    <p>True (A)</p> Signup and view all the answers

    Organizing on employer property without permission is considered an unfair labour practice.

    <p>True (A)</p> Signup and view all the answers

    An employee may refuse unsafe work only after reporting to the minister.

    <p>False (B)</p> Signup and view all the answers

    Danger is defined as any condition that poses an imminent or serious threat to life or health.

    <p>True (A)</p> Signup and view all the answers

    Employers are required to maintain records of incidents as part of their key responsibilities.

    <p>True (A)</p> Signup and view all the answers

    Employees must train employers in safe procedures to ensure occupational health and safety.

    <p>False (B)</p> Signup and view all the answers

    A restrictive covenant that prevents an employee from working for a competitor for a period of two years is generally considered reasonable.

    <p>True (A)</p> Signup and view all the answers

    If an employer can prove that a restrictive covenant protects a legitimate proprietary interest, it is automatically considered valid.

    <p>False (B)</p> Signup and view all the answers

    A restrictive covenant will always be considered valid if it protects the employer's business interests.

    <p>False (B)</p> Signup and view all the answers

    A restrictive covenant can be used to prevent an employee from using their general skills and expertise.

    <p>False (B)</p> Signup and view all the answers

    If a restrictive covenant is found to be overly broad or restrictive, it will automatically become void.

    <p>True (A)</p> Signup and view all the answers

    An employer can withdraw an offer of employment without any reason at any point before the start of employment.

    <p>False (B)</p> Signup and view all the answers

    An employee can potentially be held liable for an anticipatory breach of contract if they decide to not accept a job offer after agreeing to it.

    <p>True (A)</p> Signup and view all the answers

    An employer can use a restrictive covenant to prevent an employee from working for a competitor who operates in a different geographic location that poses no actual competition to the employer's business.

    <p>False (B)</p> Signup and view all the answers

    An employer can use a restrictive covenant to prevent an employee from working for a competitor who operates in a different industry.

    <p>False (B)</p> Signup and view all the answers

    If a restrictive covenant is found to be valid, but the employee is later wrongfully dismissed, the covenant still holds legal binding force.

    <p>False (B)</p> Signup and view all the answers

    The Wagner Act, established in 1925, serves as the foundation of modern labor law.

    <p>False (B)</p> Signup and view all the answers

    Economic sanctions can be utilized by unions as part of their bargaining strategy.

    <p>True (A)</p> Signup and view all the answers

    The process for establishing a union includes organizing employees, certification, and strike action.

    <p>False (B)</p> Signup and view all the answers

    The Labour Relations Boards were established to oversee unfair labor practices.

    <p>True (A)</p> Signup and view all the answers

    The duty to bargain in good faith is an option for unions, rather than a requirement.

    <p>False (B)</p> Signup and view all the answers

    Private members' bills are primarily designed to address public matters.

    <p>False (B)</p> Signup and view all the answers

    Judges and administrative tribunal members primarily create statutes.

    <p>False (B)</p> Signup and view all the answers

    The Mischief Rule focuses on the specific wording of a statute when it is interpreted.

    <p>False (B)</p> Signup and view all the answers

    Regulations can be changed without amending the corresponding statute.

    <p>True (A)</p> Signup and view all the answers

    Royal assent is the final step required for a bill to become a statute.

    <p>True (A)</p> Signup and view all the answers

    Legislation may consist of multiple statutes applicable to a single situation.

    <p>True (A)</p> Signup and view all the answers

    Statutes, also known as acts, contain detailed regulations governing legal matters.

    <p>False (B)</p> Signup and view all the answers

    A fraudulent misrepresentation occurs when a party is unaware of the untruth of a statement.

    <p>False (B)</p> Signup and view all the answers

    Inducement refers to the use of aggressive recruiting techniques to attract employees to new positions.

    <p>True (A)</p> Signup and view all the answers

    An employer is not liable for misrepresentations made by a recruitment firm acting on their behalf.

    <p>False (B)</p> Signup and view all the answers

    Restrictive covenants apply only during the course of employment.

    <p>False (B)</p> Signup and view all the answers

    The term 'allurement' in recruiting refers to misleading job promises.

    <p>False (B)</p> Signup and view all the answers

    Employers can reduce their exposure to liability by carefully selecting a recruitment firm.

    <p>True (A)</p> Signup and view all the answers

    Post-employment obligations can include non-compete clauses that restrict a former employee's future job opportunities.

    <p>True (A)</p> Signup and view all the answers

    An employee is entitled to damages for lost earnings due to inducement in recruitment.

    <p>True (A)</p> Signup and view all the answers

    A non-solicit clause prevents an employee from participating in any business after their employment ends.

    <p>False (B)</p> Signup and view all the answers

    Section 15(1) of the Canadian Charter of Rights and Freedoms guarantees equal protection and benefit of the law without discrimination based on marital status.

    <p>False (B)</p> Signup and view all the answers

    The Human Rights Commission accepted Vriend's claim because the College's action was discriminatory based on his sexual orientation.

    <p>False (B)</p> Signup and view all the answers

    Common law decisions are rooted in the principles of stare decisis, meaning lower courts must follow precedents set by higher courts.

    <p>True (A)</p> Signup and view all the answers

    In the context of contract law, consideration refers to the legal intention of the parties involved in an agreement.

    <p>False (B)</p> Signup and view all the answers

    The Charter allows for infringement of individual rights only if such infringement is established as unreasonable in a democratic society.

    <p>False (B)</p> Signup and view all the answers

    The concept of 'persuasive' in common law implies that a decision from a lower court can influence a higher court's ruling.

    <p>False (B)</p> Signup and view all the answers

    The Notwithstanding Clause allows Parliament to temporarily override certain sections of the Charter of Rights and Freedoms.

    <p>True (A)</p> Signup and view all the answers

    Individuals can challenge employment laws based on section 15 of the Charter if they claim an infringement of their rights.

    <p>True (A)</p> Signup and view all the answers

    The binding nature of common law implies that all lower courts must follow decisions from other lower courts.

    <p>False (B)</p> Signup and view all the answers

    Flashcards

    Sources of Employment Law

    Types of law governing employment include statute law, constitutional law, and common law.

    Statute Law

    Laws written and enacted by Parliament or legislatures.

    Public Bills

    Laws proposed by Cabinet ministers that undergo multiple readings and votes before becoming statutes.

    Private Members’ Bills

    Legislation introduced by non-Cabinet members, often with low chances of passing.

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    Statutes vs. Regulations

    Statutes outline main law requirements, while regulations provide detailed rules and can change independently.

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    Jurisdiction

    Authority given by statute to interpret laws, defining who can adjudicate and where it applies.

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    Mischief Rule

    Interprets a statute by identifying the problem it was originally intended to address.

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    Misrepresentation

    Inaccurate statement relied on by another party, causing damage.

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    Fraudulent Misrepresentation

    Deliberate falsification of facts to deceive another party.

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    Employer Liability with Search Firm

    Employers responsible for breaches made by recruitment firms.

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    Inducement

    Aggressive recruitment methods enticing employees to move jobs.

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    Consequences of Inducement

    Longer notice periods and damages for moving costs.

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    Restrictive Covenants

    Agreements preventing employees from specific actions post-employment.

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    Types of Restrictive Covenants

    Includes confidentiality, non-compete, and non-solicit clauses.

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    Post-Employment Obligation

    Restrictions that apply after the end of employment.

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    Confidentiality Covenant

    Obligation to protect sensitive information of the employer.

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    Three-Way Balance

    Balance among public interest, employee interest, and employer interest regarding restrictive covenants.

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    Public Interest

    Concerns the larger community's welfare, including free competition and labor mobility.

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    Employee Interest

    The desire of employees to use their skills and expertise freely for secure jobs.

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    Employer Interest

    Employers' need to protect their business assets and proprietary knowledge.

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    Legitimate Proprietary Interest

    A genuine business need that justifies a restrictive covenant's enforcement.

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    Reasonable Duration and Geography

    Restrictions on duration and location of a covenant should be sensible and necessary.

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    Public Interest Constraint

    The requirement that restrictive covenants should not overly limit trade or employee movement.

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    Burden of Proof

    The employer must demonstrate that a restrictive covenant is reasonable and valid.

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    Anticipatory Breach of Contract

    Liability may arise if a party repudiates an employment contract before starting.

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    Certification process

    Union organizers must show minimum support before applying to LRB for certification.

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    Decertification

    Process where a union loses its bargaining rights, similar to certification.

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    Collective bargaining

    Process where union or employer notifies intent to bargain, requiring good faith negotiations.

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    Unfair labour practices

    Disputes where employer actions harm the union or violate agreements.

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    Collective agreement

    Written agreement outlining terms of work and governing operations between employer and union.

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    Independent Contractor (IC)

    A worker who provides services under a contract, not as an employee.

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    Employee Misclassification

    Incorrectly labeling an employee as an independent contractor.

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    Contract Terms

    Written agreements outlining the status and rights of the contractor.

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    Statutory Deductions

    Mandatory taxes and contributions taken from employee paychecks.

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    Indemnity Clause

    A section in a contract protecting against certain losses or damages.

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    Temporary Employment Agency

    A business that provides workers to other companies on a temporary basis.

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    Remuneration Source

    The origin of payment to workers, significant in legal contexts.

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    Control Factor

    Refers to who has authority over day-to-day activities of workers.

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    Types of Employees

    Categories of workers like full-time, part-time, casual, etc.

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    Outsourcing

    Contracting out non-core functions to external parties.

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    Canadian Charter of Rights and Freedoms

    A 1982 law establishing rights including equality, overriding inconsistent legislation.

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    Federal Government Employment Coverage

    Covers 10% of employees in national importance industries like banking and broadcasting.

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    Provincial Government Employment Coverage

    Covers about 90% of employees, managing local labor laws and standards.

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    Municipal Legislation Authority

    Municipalities pass bylaws affecting local employers and employees under provincial authority.

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    Canada Labour Code

    Key federal statute governing labor relations and employee rights in Canada.

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    PIPEDA

    Personal Information Protection and Electronic Documents Act, regulating personal data handling in workplaces.

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    Key Employment Statutes by Province

    Specific acts like Employment Standards and Human Rights governing work conditions in provinces.

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    Section 15(1)

    Ensures equality before the law without discrimination based on various grounds.

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    Vriend v Alberta Case

    A legal case questioning the omission of sexual orientation from protected discrimination grounds.

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    Employment Law Challenge

    Employment laws can be contested if they violate the Charter's rights.

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    Reasonable Limits (s 1)

    Allows rights infringement if deemed a reasonable limit in a democratic society.

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    Common Law

    Judge-made law based on precedents, distinct from statute law.

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    Stare Decisis

    The principle that courts must follow precedents in making decisions.

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    Contract Law in Employment

    Focuses on agreements requiring offer, acceptance, and consideration.

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    Damages for Breach

    Compensation awarded to restore a party to their expected position after a contract breach.

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    Omission in Legislation

    Failure to include specific groups in human rights laws, leading to legal challenges.

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    Essential Services Agreement

    A contract that allows certain workers to negotiate terms without the right to strike.

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    Freedom of Association (s 2(d))

    The right of individuals to join groups and unions for collective bargaining.

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    Dolphin Delivery Case

    A Supreme Court case dealing with primary and secondary picketing rights of unions.

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    Labour Trilogy (1980s–90s)

    Refers to three pivotal SCC cases that limited union rights during this period.

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    Binding Arbitration

    A process where disputing parties submit to a neutral third party for resolution.

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    Restrictive Covenants Validity

    A restrictive covenant is void unless certain conditions protecting the employer's interests are met.

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    Employee Rights Post-Dismissal

    A valid restrictive covenant is void if the employee is wrongfully dismissed.

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    Anticipatory Breach

    Liability can occur if an employer or employee breaks a contract before it starts.

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    Offer and Acceptance Condition

    A breach occurs where there is a clear offer and acceptance to enter a contract.

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    Frustration of Contract

    A legal excuse to withdraw an offer if unforeseen circumstances arise.

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    Individual Employment Contract

    A legal agreement between an employer and an individual employee outlining job conditions.

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    Labour Movement

    A collective effort by workers to organize unions to advocate for better rights and conditions.

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    Modern Labour Law Features

    Key elements include union formation, mandatory bargaining, and economic sanctions by unions.

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    Wagner Act Model

    Legislation providing framework for workers' rights to unionize and to collective bargaining.

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    Duty to Bargain in Good Faith

    The legal obligation for employers and unions to negotiate honestly and transparently.

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    Economic Sanctions

    Actions taken by unions, like strikes, to exert pressure on employers during negotiations.

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    External Aids

    Tools like scholarly articles and dictionaries used to interpret legislation.

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    Key Federal Employment Statutes

    Important laws like the Canada Labour Code, governing federal employment rights.

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    Authority to Pass Legislation

    Legitimacy allows federal and provincial governments to create employment laws.

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    Union Formation

    Employees have the right to organize and form unions.

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    Duty to Bargain

    Employers and unions must negotiate in good faith.

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    Good Faith Negotiation

    Both parties must engage sincerely during negotiations.

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    Strike Rules

    Regulations governing how and when unions can strike.

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    Labour Relations Boards

    Administrative bodies overseeing labor law compliance.

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    Careful Selection of Recruitment Firm

    Choosing a reputable firm to minimize liability risks.

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    Indemnity

    A protection clause in contracts against specific losses or damages.

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    Misrepresentation Detriment

    When a party suffers damages due to another's inaccurate statements.

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    Tort Law

    Provides remedies for civil wrongs like defamation or negligence.

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    Damages in Tort Law

    Compensation awarded for losses due to a defendant’s conduct.

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    Twin Pillars of Employment Law

    Common Law and Employment-related legislation provide legal structure.

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    Areas of Common Law Liability

    Includes misrepresentation, wrongful hiring, and inducement issues.

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    Negligent Misrepresentation

    False statements made without due care, leading to reliance by another party.

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    Misrepresentation by Job Candidates

    Serious misstatements may justify dismissal if they show untrustworthiness.

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    Inducement in Employment

    Aggressive recruiting methods enticing employees from secure jobs.

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    Freedom of Association

    The right of individuals to join groups and unions for collective bargaining.

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    Labour Trilogy

    Three pivotal SCC cases that limited union rights in the 1980s–90s.

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    Dunmore Case (2001)

    A turning point in the interpretation of freedom of association in Canada.

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    Canada Labour Code (CLC)

    Key federal statute governing labor relations and employee rights in Canada.

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    Three Parts of the CLC

    Includes Industrial Relations, Occupational Health and Safety, and Standards.

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    Onus of Proof

    The burden of proof lies with the employer to show the reasonableness of a restrictive covenant.

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    Conditions for Restrictive Covenant

    A covenant must protect employer interest, be reasonable in duration/geography, and not harm public interest.

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    Liability of Client Organization

    Client organization is responsible for the economic burden of payments, not just the signatory.

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    Use of Temporary Employment Agencies

    Agencies provide workers to companies on a temporary basis.

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    Leave for Independent Contractors

    Independent Contractors can choose to accept or refuse work assignments.

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    Avoiding Employee Misclassification

    Correctly identifying workers as either employees or independent contractors to minimize risk.

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    Statute Law: Jurisdiction

    The authority given by statute to decide legal interpretations and issues.

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    Legislation

    Combined terms for statutes and regulations governing laws.

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    Interpretation of Statutes

    Judges and tribunals interpret laws during legal cases.

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    Preambles in Legislation

    Introductory statements that provide legislative purpose and context.

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    Public vs Private Bills

    Public Bills pertain to public matters; Private Bills are for non-public issues.

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    Background Checks

    Investigations into an individual's past to mitigate employer liability.

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    Employee vs Independent Contractor

    Classification determining rights and protections in employment.

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    Control Test

    Determines employment status by who controls work schedule and location.

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    Risk Test

    Assesses if a worker has financial investment and thus risk of loss or profit.

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    Organization Test

    Evaluates if worker's services are essential to the business operations.

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    Ownership Test

    Examines who owns the tools needed to perform the job.

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    Advantages for Employers of IC

    Includes no statutory remittances and no wrongful dismissal claims.

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    Advantages for IC

    Include tax benefits and greater work flexibility.

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    Occupational Health and Safety (OHS) Purpose

    To prevent accidents and injuries related to employment through regulations and policies.

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    Right to Refuse Unsafe Work

    Employees can refuse unsafe jobs without retaliation, reporting to supervisors or committees.

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    Danger Definition (CLC)

    A condition or activity likely to pose an imminent or serious threat to life or health.

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    Key Responsibilities of Employers

    Employers must develop safety policies, train employees, and maintain safe conditions.

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    Minimize IC Risk

    Steps to avoid independent contractor being classified as an employee.

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    Temporary Employment Agencies

    Businesses that provide workers to other companies on a short-term basis.

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    Economic Burden

    Refers to who ultimately ensures funds are available to pay workers.

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    Contract Terms for IC

    Written agreements that outline the rights and status of independent contractors.

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    Ratification Process

    The voting procedure by employees to accept or reject a tentative agreement.

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    Grievance Process

    Steps outlined in the collective agreement for resolving disputes before arbitration.

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    Arbitration

    A last resort dispute resolution process where a neutral party decides the outcome.

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    Strike

    The right of unionized workers to cease work, requiring a vote for action.

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    Lockout

    The employer's right to prevent workers from working, usually during labor disputes.

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    Essential Services

    Services vital to public safety that cannot strike or be locked out.

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    Strike Vote Procedures

    Regulated steps where employees vote to support or oppose a strike.

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    Withdrawal of Services

    Strikers can stop providing their work but must follow regulations.

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    Peaceful Picketing

    Legal public demonstrations by strikers to communicate their message.

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    Private Bills

    Legislation covering non-public matters like corporate changes.

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    Judicial Interpretation

    Judges' role in clarifying and applying law when adjudicating cases.

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    Geographic Jurisdiction

    The region a statute applies to, as defined by the law.

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    Clause by Clause Discussion

    The process in legislative committees reviewing bills in detail.

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    Royal Assent

    The final step where a bill becomes law after official approval.

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    Charter’s Effect on Employment Law

    Employment laws can be challenged if they violate rights guaranteed by the Charter.

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    Parts of the Common Law

    Includes principles like stare decisis and watershed decisions that guide legal rulings.

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    Tort of Allurement

    Legal compensation for damages incurred due to misleading recruitment promises.

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    Non-Solicit Clause

    A covenant preventing employees from soliciting clients or colleagues after leaving.

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    Study Notes

    • Statute law is created by Parliament and Legislatures, which involves a process of drafting, debating, and voting on proposed legislation. This type of law plays a crucial role in establishing clear legal standards and regulations that govern various aspects of workplace relationships.
    • Constitutional law, such as the Canadian Charter of Rights and Freedoms, is another source of law
    • Common law is based on written judgments from judges

    Statute Law: How it is Made

    • Public bills are introduced by a Cabinet minister (first reading)
    • A debate on the bill in principle takes place (second reading), leading to a legislative vote
    • If the bill passes, a legislative committee discusses the clauses in the bill
    • There is a final vote on the bill (third reading)
    • The Lieutenant Governor approves the bill (royal assent) and it becomes a statute

    Statute Law: How It Is Made (cont'd)

    • Private bills cover non-public matters, such as changes to corporate charters
    • Private members' bills, also known as members' bills, cover public matters
    • A private member of the legislature (MLA) introduces the bill
    • They aren't cabinet ministers - generally a "backbencher" (member of the ruling party) or a member of an opposition party
    • Private members' bills have a lower chance of passing

    Statute Law: Acts and Regulations

    • Statutes, also called Acts, contain the main requirements of the law
    • Regulations provide detailed requirements to implement the law, and can be amended without changing the statute
    • Together, statutes and regulations are referred to as "legislation"

    Statute Law: Jurisdiction and Interpretation

    • Judges and members of administrative tribunals interpret legislation during a case
    • Jurisdiction (authority) to interpret legislation is established by the statute, including who can adjudicate, what issues can be adjudicated, and the geographic region to which the statute applies
    • Several statutes can apply to a single situation

    Statute Law: Rules for Interpretation of Statutes

    • Mischief rule: determining what problem the statute intended to address
    • Internal aids: examining the preamble and terms of the statute for definitions
    • External aids: referencing scholarly articles and dictionaries to get further insights

    Authority to Pass Legislation

    • The Constitution Act, 1867, divides legislative authority between federal and provincial governments
    • Provincial governments handle about 90% of employment issues, while federal governments handle 10% of employment issues in nationally important industries (e.g., banks, shipping, broadcasting)
    • Delegated authority allows municipalities to pass bylaws affecting employers and employees

    Key Employment Statutes

    • Lists key employment statutes for Alberta (AB) and British Columbia (BC), and federal statutes of Canada
    • Employment Standards, Human Rights, Labour Relations, Occupational Health and Safety, Workers' Compensation Acts, and Personal Information Protection Acts are some examples of statutes, including examples of specific codes such as Canada Labour Code, Canadian Human Rights Act, Employment Equity Act, Personal Information Protection and Electronic Documents Act (PIPEDA), Canada Pension Plan, and Employment Insurance Act

    Canadian Charter of Rights and Freedoms

    • Passed in 1982, the Charter outlines various rights, including equality rights
    • The Charter only applies if there's involvement by the government
    • The Charter is "supreme law," allowing it to override inconsistent legislation or government action

    Canadian Charter of Rights and Freedoms (cont'd)

    • Section 15(1) of the Charter ensures equality before and under the law, with equal protection and benefit without discrimination (e.g., based on race, national origin, colour, religion, sex, age, or mental/physical disability)

    Vriend v Alberta

    • Vriend, a teacher at a Christian college in Alberta, was terminated for being gay.
    • The Human Rights Commission didn’t accept the claim and noted sexual orientation wasn’t a protected ground.
    • The issue was whether excluding sexual orientation as a prohibited ground was unconstitutional.

    The Charter's Effect on Employment Law

    • Employment laws can be challenged if they violate rights or freedoms guaranteed in the Charter
    • Infringement of rights is potentially permissible under Section 1, if it is a reasonable limit (e.g. R v Oakes)
    • A Notwithstanding clause allows certain legislation to be exempt from the Charter

    The Common Law

    • Judge-made law is separate from statute law. It's considered “residual” in nature.
    • Common law judgments are based on precedent (stare decisis)
    • Principles of Common Law include:
      • Stare decisis (following previous rulings)
      • Binding precedent
      • Persuasive precedents
      • Distinguishable decisions
      • Watershed decisions

    Common Law and Employment

    • Two main common law branches affecting employment are Contract Law and Tort Law
    • Contract Law: A valid contract requires offer, acceptance, and consideration. Damages may be awarded to place the plaintiff in the same position they would have been in had the contract not been breached
    • Tort Law: Provides remedies for civil wrongs beyond contract breaches, like defamation, negligence, or assault. Damages might compensate for losses from the defendant's conduct in these cases.

    Hierarchical Court System

    • Supreme Court of Canada
    • Court of Appeal
    • Superior Courts
    • Special Jurisdiction Courts
    • Administrative Tribunals
    • Specialized commissions and boards administer employment statutes
    • Specialized tribunals interpret and enforce statutes

    Locating Employment Laws

    Twin Pillars of Individual Employment Law

    • Two main sources of employment regulations are common law and employment-related legislation. Legislation often acts as a "floor" for rights and as a mechanism for enforcement
    • Legislation is either provincial or federal

    Areas of Common Law Liability

    • Common law areas of employment law concern
    • Misrepresentation by candidates, wrongful hiring due to negligent misrepresentation, inducement or allurement, restrictive covenants (non-competition, confidentiality, non-solicitation), breach of contract, negligent hiring based on background checks, inducing breach of contract

    Misrepresentation by Job Candidates

    • False or misleading statements by job candidates could lead to dismissal if they seriously prejudice the employer; or indicate material untrustworthiness
    • Minor misstatements are usually not grounds for dismissal unless they led to the employer hiring the applicant

    Misrepresentation: Wrongful Hiring

    • Negligent misrepresentation occurs when one party with special knowledge makes an incorrect statement and the other relies upon it (e.g., Queen v Cognos Inc)
    • Fraudulent misrepresentation occurs when one party makes a knowingly false statement and the other party relies on it to their detriment
    • Executive/Recruitment firms and liability. The employer is liable for any breaches, misrepresentations, or inducements of the search firm if the firm is "acting on behalf of" the employer.

    Inducement (Allurement, Enticement)

    • Aggressive recruitment techniques or inflated promises that lure an employee to a new job
    • Possible outcomes: longer notice periods, additional damages for lost income, moving costs, or new home purchase

    Restrictive Covenants

    • A type of agreement preventing former/current employees from harming the company’s interests (exploiting client relationships/confidential information, competing with the company)
    • Valid restrictive covenants balance public interest (free competition/labour mobility) with the employer and employee interest

    Restrictive Covenants (cont'd)

    • Examples of restrictive covenants
    • Confidentiality, non-compete, and non-solicit agreements

    Restrictive Covenants: Three-way Balance

    • Public interest: free market and labour mobility
    • Employee interest: utilization of knowledge, skills, and experience to secure employment
    • Employer interest: protecting business interests

    Restrictive Covenants (cont'd)

    • Any restrictive covenant is void if it's a restraint of trade unless
      • It protects a legitimate proprietary interest (firm-unique, not general expertise)
      • Reasonable duration and geographic restrictions
      • Not contrary to the public interest/unduly broad or restrictive

    Restrictive Covenants (cont'd)

    • Burden of proof for demonstrating a covenant's reasonableness lies with the employer
    • Any reasonable doubts are resolved in favour of the employee
    • Employment contract can be void if employee was dismissed wrongfully

    Anticipatory Breach of Contract

    • Either employer or employee can be liable for breaking a contract before employment begins
    • Employment contract will be invalidated if:
    1. Offer and acceptance of contract (written or verbal) exists
    2. There is no valid reason to withdraw the offer
    3. The breach is not due to unforeseen circumstances (“Frustration”)

    Background Checks (Negligent Hiring)

    • Background checks should be comprehensive enough to avoid foreseeable harm to third parties
    • Include employment references, credentials, credit reports, and police records

    Defining the Relationship: Tests for Determining Status

    • Determining employment status (employee vs independent contractor)
    • Different tests and criteria (including control test, risk test, organization test, and ownership test)
    • Common legal disputes

    Employee vs Independent Contractor

    • A growing trend towards independent contractors
    • Protective employment legislation typically only applies to employees, not independent contractors
    • Human Rights and Occupational Health and Safety Acts apply to both employee and independent contractor
    • Criteria to determine if someone is an employee or not

    Independent Contractor (IC)

    • Independent contractors are generally self-employed workers performing specific tasks
    • Increasingly employed alternatives to traditional employment
    • They are not considered employees of the company they work for
    • Legal differences are important

    Independent Contractor (cont'd)

    • Advantages for employers: they avoid salary and statutory deductions, ICs are not entitled to employment standards protections, and avoid wrongful dismissal claims
    • Advantages for contractors: tax breaks and more flexible work arrangements

    Methods/Tests for Determining Status

    • Tests to determine if an individual is an employee or independent contractor
    1. Control test: Who controls the "when" and "where" of work?
    2. Risk test: Does a worker have a financial investment in the business, exposing them to risk of loss or profit?

    Methods/Tests for Determining Status (cont'd)

    1. Organization test: Are services integral or ancillary to the business?
    2. Ownership test: Who owns the tools? Instructive but not conclusive.

    Some Steps to Minimize Risk of IC Being Deemed an Employee

    • Clear contracts that identify IC status
    • Avoiding statutory deductions or Employment Standards Code (ESC) standards
    • Providing an indemnity clause
    • Allow ICs to work for others
    • Avoiding setting hours
    • Have IC purchase own insurance
    • No formal performance reviews
    • IC should incorporate
    • Minimize integration into organization

    Use of Temporary Employment Agencies

    • Leasing or hiring individuals through temporary employment agencies is a growing trend across industries
    • This trend accelerates with advancements in technology and outsourcing of non-core functions

    Liability of Client Organization

    • Courts look at who ultimately carries the financial burden for paying employees (e.g. who wrote the cheque)
    • Other relevant factors include who exercises daily control, hiring, discipline, and dismissing employees

    Types of Employees

    • Employers may segment employees based on hours of work (full-time, part-time temporary or casual) or if the employees are hired through an agency

    Chapter Overview

    • Key topics in Labour law are explored such as the history of labour law, forming a union, collective agreements, strikes, lockouts, and the rights of unions

    Introduction

    • Individual employment contracts
    • Imbalance of employer/employee power
    • How labour movements rebalanced relationships
    • Increased role of unions

    History and Premises

    • Main features of modern labour law (since 1940s)
    • Individual employees' ability to form a union
    • Union's ability to force employer to bargain with it only
    • Union ability to use economic sanctions
    • Informed early employment legislation; Wagner Act

    History and Premises (cont'd)

    • 1925 provincial authority to regulate labour and employment
    • Wagner Act model (1943 onwards), forming the modern basis for labour law

    History and Premises (cont'd)

    • Right of employees to form/join a union
    • Process for union certification
    • Collective agreements as enforceable contracts
    • Rules for the strike/lockout

    Establishing a Union and other sections, as in the previous notes.

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