Legal Framework - Overview Of Employment Law PDF

Summary

This document provides an overview of employment law in Canada. It covers the different sources of law, including the constitution, statutes, and regulations. It also discusses the process of how statutes are created and how employment relationships are regulated. The document is part of a larger course likely pertaining to legal studies.

Full Transcript

The Legal Framework - Overview Of Employment Law January 6, 2025 8:24 AM Sources of law The law is found in… - The constitution (constitutional law) - In statutes and regulations (statute law) - In court decisions (the common law or judge made law) Canada's constitution - Is the supreme...

The Legal Framework - Overview Of Employment Law January 6, 2025 8:24 AM Sources of law The law is found in… - The constitution (constitutional law) - In statutes and regulations (statute law) - In court decisions (the common law or judge made law) Canada's constitution - Is the supreme or highest law in Canada - Provides government with the authority to create and enforce laws - Limits the exercise of government power over individuals, by protecting important rights and freedoms - Includes constitution act 1867 and constitution act 1982 (part one is the canadian charter of rights and freedoms) Constitution act 1867 - created canada - Created a federal system of government with two main levels - federal and provincial - that share governing and law making powers - Created three branches of government that exist in both levels - Legislative branch creates statutes Executive branch creates and implements government policy and law - Judicial branch adjudicates ( makes decisions on) legal disputes Legislative Branch and Statutes - Legislative branch creates legislation (formal written laws called statutes) - Federal level: parliament, house of commons (MPs) + senate + governor general (rep. of the monarch). In Ottawa - Provincial level: provincial legislature: legislative assembly (MLAs) + lieutenant governor. Alberta legislature consisting of the legislative assembly of Alberta and the lieutenant governor of Alberta. In Edmonton - A statute's title typically ends with the work act or code Ex. Alberta Human Rights Act or Employment Standards Code - The legislative branch at both the federal and provincial level has the jurisdiction (power) to create statutes regulating employment. There are federal and Alberta statues regulating employment in Alberta Why are employment statutes passed? Why are they amended? - They are created because a federal or provincial government decides employees require protections or rights beyond the ones that already exist - Factors that motivate employment statute changes (amendments) include… - demographic shifts in society and changing social values - technological changes - shifts in the economy and the nature of people's work - shifts In the political party in power ex. NDP changing the minimum wage How statutes are made By Parliament: - Executive branch examines a problem, considers how a law might deal with, and drafts a proposed law called a bill - Cabinet minister introduces bull to parliament (legislative branch) LEGL 312 SB01 Page 1 - Cabinet minister introduces bull to parliament (legislative branch) - Bill is debated and studied by MPs in the house of commons and senators in the senate - Bill becomes a federal statute (law) if it is… approved by a majority in both the house of commons and the senate and receives royal assent from the governor general. By The Alberta Legislature: - Executive branch examines a problem, considers how a law might deal with and drafts a bill (proposed law) - Cabinet minister introduces bill to legislative assembly of Alberta (legislative branch) - Bill is debated and studied by MLAs in the legislative assembly - Bill becomes an Alberta statute (law) if it is… approved by a majority in the legislative assembly And receives royal assent from the lieutenant governor Employment-Related statues - Most employment relationships in Alberta are regulated by Alberta statutes - Alberta's employment-related statutes include Employment Standards Code, Alberta Human Rights act, Personal information Act - A small percentage of employment relationships in Alberta are regulated by federal statutes - Federal statutes regulate employees of the federal government and employees in certain industries like banking, airlines, broadcasting and shipping - Some federal statutes apply to all employees in Canada including Alberta like CPP and EI Executive Branch and regulations - The executive branch performs day-to-day operations of government. Like formulating and carrying out government policy and administers government departments Federal level - Chief executive = prime minister of canada ex. Justin Trudeau (currently) Provincial level - Chief executive = premier of province ex. Premier Danielle Smith Executive branch at both levels also includes - Cabinet ministers - Public servants - Boards, agencies, commissions, and tribunals (administrative authorities) The legislative branch delegates (gives) some power to create legislation to the executive branch Legislation made by the executive branch is called subordinate, or delegated legislation and takes the form of regulations Regulations define how a statute, created by the legislative branch will apply and be enforced by the executive branch - Alberta's Employment Standards Code says: "an employer must pay and employee at a wage rate that is at least the minimum wage established by regulation" and gives the Alberta's cabinet the power to make regulations establishing "one or more minimum wages to be paid by employers to employees" - Alberta's cabinet exercised that power by created the Employment Standards Regulation which sets out the minimum wages an employer must pay employees in Alberta. The employment standards regulation says the basic minimum wage in Alberta is $15 per hour and explains that for students under the age of 18 years the minimum wage is $13 per hour - Like statutes, regulations have the force of the law. Judicial branch and Common Law - Judicial brand is made up of judges who work within a system - Judges are responsible for resolving all sorts of legal disputes fairly. They make formal written decisions about cases based on the evidence presented and the applicable law Judges: - Resolve disputes between individuals and between individuals and the government - Interpret and pronounce law, set standards and decide questions that affect all parrs of canadian society - Interpret and apply the constitution and legislation passed by the legislative and executive branches LEGL 312 SB01 Page 2 - Interpret and apply the constitution and legislation passed by the legislative and executive branches - Develop their own law and apply the law made by other judges in earlier cases - Judge-made law, or the law found in court decisions is called the common law - Lower court judges must follow the decisions that higher court judges in their jurisdiction have made in similar cases. This requirement is known as stare decisis (to stan by decided matters) Court hierarchy in Alberta - Court of appeal of Alberta (appellate court) - Court of king's bench of Alberta (superior court) - Alberta court of justice (lower court) - The supreme court of canada is the highest court in the country. So the decisions its judges made must be followed by all other judges in Canada - Judge made rules that must be followed by other judges are called precedents. Precedents are important because they help us predict how a judge might decide a case that comes before them. They create consistency and certainty in the law. Summary of the constitution act 1867 - Created Canada - Two main levels of government: federal and provincial - Three branches of government at each level: legislative, executive, and judicial - Legislative branch makes statutes - Executive branch makes regulations - Judicial brand makes the common law Constitution act 1982 - Patriated Canada's constitution. Transferred control of canada's highest law from Britain's parliament to canada's parliament and provincial legislatures - Includes the canadian charter of rights and freedoms (the charter). Protects basic rights and fundamental freedoms that are essential to keeping canada a free and democratic society including: - freedom of religion - Freedom of expression - Democratic rights - Mobility rights - Legal rights - Equality rights - Charters application The charter only protects people in canada from improper or oppressive government conduct (only limits government power - what governments can do) The charter does not apply to the actions of private (non-government) individuals or organizations - Rights violations in the private sector like discrimination in employment, are addressed by federal and provincial human right statutes - Canadian human rights act - Alberta human rights act Section 1 (reasonable limits clause) - Because of section 1 if a court concludes that a statute violates a charter right or freedom, it must go on to consider whether the statute imposes a reasonable limit on that right or freedom - A court will only declare a statute unconstitutional and fix it or strike it down when it include that a statute violates a charter or freedom and the violation cannot be justified as reasonable in the circumstances. Section 33 (notwithstanding clause) - This section says that parliament or a provincial legislature can create a statute that expressly declares (clearly states) that it is meant to operate notwithstanding a right or freedom guaranteed by section 2 or sections 7-15 of the charter LEGL 312 SB01 Page 3 the charter - When parliament or a provincial legislature does that it removes the court's power to declare the statute unconstitutional for violating the charter and fix the statute or strike it down. Ex. Saskatchewan's legislature used the notwithstanding clause in a controversial statue amendment that requires parental consent before a student under the age of 16 can use a "new gender-related preferred name or gender identity at school" Charter-based challenges - The charter is part of the supreme or highest law in Canada (the constitution) so government actions including the legislation the government created must follow its principles - When an individual thinks a government action has violated their charter rights or freedoms, they can challenge that action in court - If a court concludes that a statute violates a person's charter rights or freedoms. The court might read words into a statute to fix it or they might declare the statute invalid (unconstitutional) and strike it down - A statute struck down by a court is of no force or affect; it no longer applies. - Courts can add to the list of groups protected by section 15. for example sexual orientation has been added as a prohibited ground of discrimination (confirmed Vriend v Alberta) - Section 15 promotes a society in which we can all be secure knowing that the law recognizes us as humans equally of concern, respect and consideration. Common law areas that affect employment: Contract law A contract is an agreement between two parties that is enforceable - enforceable means that the courts can be relied on to ensure compliance with the agreement - Another way of saying an agreement is enforceable is to say that it is legally binding Contract law governs contracts Contract law is fundamental to employments because the legal relationship between an employer and an employee is contractual - based on a contract General principles of contract law determine whether an employer-employee relationship exists and what remedies apply when an employment contract is breached by one of the parties (the employer or employee) Most employment contracts, whether written or oral have several implied terms - Implied terms are default or mandatory rules that the courts assume are part of an employment contract even if they haven't been expressly included Ex. An employer has a duty to provide a safe work environment Ex. An employee has a duty to be honest - Contract law provides that on a successful lawsuit based in employment contract, financial compensation (money), called damages are awarded to the plaintiff (the suing party) to put them in the same position they would have been In if the defendant (the party being sued) had not breached the contract Financial award is called damages Common law areas that affect employment: tort law A tort is a wrongful act, other than a crime or a breach of contract committed by one person; that causes another person to suffer an injury or loss (harm); resulting in legal liability for the person who committed the wrongful act (tort) Ex. Negligence in a car accident, inducement by poaching another employer from another company, defamation by harming someone's reputation - A tort can be committed intentionally (on purpose or deliberately) or negligently (carelessly or accidently) Tort law provides a way for people to seek financial compensation - damages - when they have been harmed as a result of the wrongdoings of others. - Tort law gives tort victims legal claims to make against, and remedies to pursue from tortfeasors (people who commit torts) Tort law relates to employment because employers and employees have the potential to be tortfeasors or tort victims - An employer or an employee might harm someone else or be harmed by someone else and need to look to tort law to deal with their situation. LEGL 312 SB01 Page 4 law to deal with their situation. In a successful lawsuit based on a tort, damages are awarded to the plaintiff (tort victim) for the harm they suffered because of the defendants (tortfeasor) conduct Administrative law - Consists of the rules created and applied by the executive branch of government; that is, the rules created and applied by the various boards, agencies, commissions, tribunals and individuals to whom the legislative branch of government has delegated power (administrative authorities). - Ensures government actions are authorized by parliament or a provincial legislature in a statute. That is, makes sure administrative authorities act within the scope of the powers that have been delegated to them by legislation. - Ensures that administrative authorities administer and implement laws fairly; that is, in accordance with the principles of natural justice. - The role of the courts in administrative law is to supervise administrative authorities by reviewing their decisions when they re challenged - However courts are not quick to interfere with the decisions made by administrative authorities because administrative authorities usually have a lot of knowledge and expertise in their fields. A court will only interfere with an administrative authority's decision if it finds that the authority… - Exceeded its jurisdiction (did something outside of its delegated power - Did not follow a fair process - Made an error of law - Or reached an unreasonable conclusion Administrative authorities There are many administrative authorities in canada, and in Alberta. Some of the administrative authorities that deal with employment law are - Employment standards - The alberta human rights commission - The office of the information and privacy commissioner of alberta The alberta human rights commission - The alberta human rights act gives the commission the power to receive and deal with complaints filed by people who believe they have been discriminated against by an employer - The commissions website sets out how it receives and deals with human rights complaints - The website explains that some complaints end up before a human rights tribunal where they are dealt with using a hearing process that is similar to a court hearing process - A decision made by a human rights tribunal is an example of an administrative decision that could end up being reviewing by a court if it was challenged LEGL 312 SB01 Page 5

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