Sources of Law in Canadian Employment PDF

**⚖️ Sources of Law in Canadian Employment** **Common Law:Definition and Significance** *Definition:* *Common law* refers to legal principles established through judicial decisions over time. These precedents, or *stare decisis*, guide future rulings on similar cases. While older cases might not d...

**⚖️ Sources of Law in Canadian Employment** **Common Law:Definition and Significance** *Definition:* *Common law* refers to legal principles established through judicial decisions over time. These precedents, or *stare decisis*, guide future rulings on similar cases. While older cases might not directly apply to modern situations, their reasoning and principles remain influential. **Statutory Law: Key Acts and Regulations** *Definition:* *Statutory law* comprises laws passed by federal and provincial legislatures. These laws often codify and expand upon common law principles. *Key Acts:* - **Canada Labour Code:** Governs federally regulated workplaces (banks, airlines, etc.). - **Employment Standards Act, 2000 (Ontario):** Sets minimum employment standards in Ontario. Similar acts exist in other provinces. - **Human Rights Codes (Federal and Provincial):** Prohibit discrimination based on various grounds. - **Occupational Health and Safety Acts (Federal and Provincial):** Regulate workplace safety, including harassment. - **Pay Equity Acts (Provincial):** Aim to eliminate gender-based wage disparities. - **Constitutional Law: Federal vs. Provincial Jurisdiction** *Definition:* The *Constitution Act, 1867* (formerly the *British North America Act*) and the *Constitution Act, 1982* (including the *Canadian Charter of Rights and Freedoms*) establish the division of powers between the federal and provincial governments. *Jurisdictional Issues:* Employment law is primarily a provincial matter, except for federally regulated industries. The Constitution doesn\'t explicitly address this division, leading to court interpretations defining which level of government has jurisdiction over specific types of employment. **🏢 Employment Relationships: Employee vs. Independent Contractor vs. Dependent Contractor** **Defining the Employment Relationship** *Definition:* An *employment relationship* exists when an individual performs work for an employer under the employer\'s control and direction. An *independent contractor*, conversely, provides services independently, with greater autonomy and control over their work. A *dependent contractor* is a hybrid category that shares characteristics of both employees and independent contractors. **Key Distinctions** - **Control**: - **Employee**: Employers exert significant control over employees\' work, including how, when, and where the work is performed. - **Independent Contractor**: Contractors have more autonomy and control over their work, deciding how to complete tasks without direct oversight. Not a set schedule. - **Dependent Contractor**: While they have some autonomy, dependent contractors are economically reliant on a single employer for their income, which limits their independence. - **Integration**: - **Employee**: Employees\' work is integrated into the employer\'s business, contributing directly to its operations. - **Independent Contractor**: Contractors\' work is more separate and often project-based, not integrated into the employer\'s core business. - **Dependent Contractor**: Their work is often integrated into the employer\'s business, but they maintain a level of independence in how they perform their tasks. - **Tools and Equipment**: - **Employee**: Typically use the employer\'s tools and equipment. - **Independent Contractor**: Usually provide their own tools and equipment. - **Dependent Contractor**: May use the employer\'s tools but often have some flexibility in how they perform their work. - **Financial Risk**: - **Employee**: Employees bear less financial risk; they receive a steady paycheck and benefits. - **Independent Contractor**: Contractors bear more financial risk, as they are responsible for their own expenses and taxes. - **Dependent Contractor**: They may have some financial risk but are generally more secure than independent contractors due to their reliance on a single employer. **Consequences of Misclassification** *Risks for Employers*: Misclassifying employees as independent or dependent contractors can result in: - Back taxes and penalties for unpaid employment insurance (EI), Canada Pension Plan (CPP), and other deductions. - Liability for unpaid wages, benefits, and statutory entitlements. - Legal challenges and potential fines. *Risks for Workers*: Being misclassified can deprive workers of: - Employment insurance benefits. - Workplace safety protections. - Statutory minimum employment standards. **Legal Tests for Classification** Courts use a multi-factor test to determine the nature of the relationship, considering factors such as: - The degree of control exercised by the employer. - The level of integration of the worker\'s tasks into the employer\'s business. - The worker\'s financial risk and investment in tools and equipment. **Advanced Concepts** - **Dependent Contractor**: This category includes individuals who perform work or services for another person under terms that create economic dependence on that person. They may be entitled to reasonable notice entitlements similar to employees. - **Legal Implications**: Misclassification can lead to significant legal and financial penalties for employers. Courts may scrutinize the employment relationship and override contracts if necessary, especially if the worker can demonstrate that they are economically dependent on the employer **📜 Employment Contracts: Essential Elements and Terms** **Essential Elements of a Valid Contract** *Offer:* A clear and definite proposal to enter into a contract. *Acceptance:* Unconditional agreement to the terms of the offer. *Consideration:* Something of value exchanged between the parties (usually wages for services). *Intention to Create Legal Relations:* The parties must intend for the agreement to be legally binding. *Capacity:* The parties must be legally competent to enter into a contract. *Legality:* The contract\'s purpose must be legal. **Common Contractual Terms** *Parties:* Names and contact information of employer and employee. *Job Description:* Detailed description of the employee\'s duties and responsibilities. *Compensation:* Wages, salary, benefits, and other forms of compensation. *Hours of Work:* Regular hours, overtime provisions, and break times. *Termination Clause:* Notice periods, severance pay, and grounds for termination. *Confidentiality:* Obligations to protect the employer\'s confidential information. *Restrictive Covenants:* Limitations on the employee\'s activities after termination (e.g., non-compete clauses). **Implied Terms in Employment Contracts** *Definition:* *Implied terms* are conditions not explicitly stated in the contract but are implied by law or custom. *Examples:* - Duty of good faith and fair dealing. - Duty of confidentiality. - Implied term of reasonable notice upon termination. *Advanced Concepts:* Analyze case law illustrating how courts imply terms into employment contracts. Understand the factors courts consider when determining the reasonableness of implied terms. **🗓️ Leaves of Absence: Entitlements and Procedures** **Types of Leave Under Federal and Provincial Legislation** - **Maternity Leave**: - **Federal**: Up to 15 weeks of unpaid leave for birth mothers. - **Provincial (e.g., Ontario)**: Similar provisions, with additional rights for job protection and benefits. - **Parental Leave**: - **Federal**: Up to 40 weeks of unpaid leave for parents (can be shared between parents). - **Provincial**: Varies by province; Ontario allows up to 61 weeks for birth mothers who take maternity leave. - **Sick Leave**: - **Federal**: Employees are entitled to 3 paid sick days after 30 days of continuous employment. - **Provincial**: Varies; Ontario allows up to 3 unpaid days per calendar year. - **Family Medical Leave**: - **Federal**: Up to 28 weeks of unpaid leave to care for a family member with a serious medical condition. - **Provincial**: Similar provisions exist, with variations in duration and eligibility. - **Bereavement Leave**: - **Federal**: No specific federal provisions; typically governed by provincial laws. - **Provincial**: Ontario allows up to 2 unpaid days for the death of a family member. - **Compassionate Care Leave**: - **Federal**: Up to 28 weeks of unpaid leave to care for a family member who is gravely ill. - **Provincial**: Similar provisions, with specific eligibility criteria. **Procedures for Taking Leave** - **Notice Requirements**: Employees must generally provide written notice to their employer, typically at least four weeks in advance, unless there is a valid reason for not doing so. - **Medical Certificates**: Some leaves, such as sick leave, may require medical documentation. - **Return to Work**: Employees have the right to return to their previous position or a comparable position after their leave. **🤝 Collective Agreements** **Definition and Importance** - **Collective Agreements**: Contracts negotiated between employers and unions that outline the terms and conditions of employment for unionized workers. - **Key Elements**: - **Wages and Benefits**: Specifies salary scales, bonuses, and benefits such as health insurance and retirement plans. - **Working Conditions**: Outlines hours of work, overtime pay, and safety standards. - **Dispute Resolution**: Includes procedures for addressing grievances and disputes, often through arbitration. **Benefits and Drawbacks** - **Benefits**: - Provides a structured framework for negotiations and conflict resolution. - Ensures that employees have a voice in their working conditions. - Can lead to better wages and benefits compared to non-unionized environments. - **Drawbacks**: - Can be complex and time-consuming to negotiate. - May limit individual flexibility in negotiating personal employment terms. **⚖️ Occupational Health and Safety Act (OHSA)** **Key Provisions** - **Employer Responsibilities**: Employers must take all reasonable precautions to protect the health and safety of workers, including providing proper training, equipment, and a safe work environment. - **Employee Rights**: - Right to refuse unsafe work. - Right to participate in health and safety discussions and committees. - Right to know about potential hazards in the workplace. **Enforcement and Compliance** - **Inspections**: The Ministry of Labour conducts inspections to ensure compliance with OHSA regulations. - **Penalties**: Employers who violate OHSA can face fines and other penalties, including orders to correct unsafe conditions. **Recent Amendments** - **Bill C-65**: Amended the Canada Labour Code to include provisions for workplace harassment and violence, requiring employers to develop policies and training programs. **📜 Other Relevant Legislation** - **Canada Labour Code**: Governs federally regulated workplaces, including provisions for collective bargaining, occupational health and safety, and employment standards. - **Employment Standards Act (ESA)**: Sets minimum employment standards in provinces, including wages, hours of work, and leave entitlements. - **Human Rights Codes**: Prohibit discrimination in employment based on various grounds, including race, gender, and disability. - **Pay Equity Act**: Aims to eliminate gender-based wage disparities by ensuring equal pay for equal work. **📚 Notable Case Law** - **McKinley v. BC Tel (2001)**: This case established that an employer must demonstrate just cause for termination, emphasizing the need for a fair process and consideration of the employee\'s conduct in context. - **Wallace v. United Grain Growers Ltd. (1997)**: The Supreme Court of Canada ruled that an employer\'s conduct during the termination process can affect the notice period required, leading to the concept of \"Wallace damages\" for bad faith in termination. - **R v. Kapp (2008)**: This case clarified the application of Section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination, and established a two-part test for assessing whether a law creates a distinction based on enumerated grounds. - **Meiorin v. British Columbia (Public Service) (1999)**: This case established the \"Meiorin test\" for determining whether a discriminatory standard is a bona fide occupational requirement, emphasizing the need for a rational connection to job performance. - **B.C. Human Rights Tribunal v. Schrenk (2017)**: This case highlighted the importance of workplace harassment policies and the employer\'s responsibility to provide a safe work environment free from discrimination and harassment. **⚖️ Termination of Employment: Just Cause, Notice, and Severance** **Termination with Just Cause** *Definition:* *Just cause* refers to serious misconduct or incompetence that justifies immediate dismissal without notice or severance pay. *Examples:* Theft, gross negligence, insubordination, serious breaches of confidentiality, violence or harassment in the workplace. *Advanced Concepts:* The standard for just cause is high. Employers must demonstrate that the employee\'s conduct was serious enough to warrant immediate dismissal. Progressive discipline is often required before termination with just cause. Analyze case law illustrating the application of just cause. **Termination Without Just Cause: Notice and Severance** *Notice Period:* Employers must provide employees with reasonable notice of termination, or pay in lieu of notice. The required notice period depends on factors such as the employee\'s length of service, position, and the availability of similar employment. *Severance Pay:* In addition to notice or pay in lieu of notice, employees may be entitled to severance pay if their employment is terminated due to a mass layoff or the closure of a business. *Advanced Concepts:* Analyze case law illustrating the determination of reasonable notice. Understand the factors courts consider when assessing the adequacy of notice. Explore the specific requirements for severance pay under federal and provincial legislation. **Constructive Dismissal** *Definition:* *Constructive dismissal* occurs when an employer makes fundamental changes to the employment relationship without the employee\'s consent, such as a significant demotion, reduction in pay, or change in duties. This is considered a breach of contract, entitling the employee to damages. *Advanced Concepts:* Analyze case law illustrating situations that constitute constructive dismissal. Understand the employee\'s options when facing constructive dismissal, including resigning and claiming damages. **♿️ Accessibility for Ontarians with Disabilities Act (AODA)** **Key Provisions of the AODA** *Accessibility Standards:* The AODA establishes accessibility standards for various aspects of life in Ontario, including employment, transportation, and customer service. *Integrated Accessibility Standards Regulation:* This regulation sets out specific requirements for employers to create accessible workplaces. *Duty to Accommodate:* Employers have a legal duty to accommodate employees with disabilities to the point of undue hardship. *Accessibility Standards for Customer Service:* This regulation sets out requirements for businesses to provide accessible customer service. *Advanced Concepts:* Analyze the specific requirements of the Integrated Accessibility Standards Regulation. Understand the legal tests used to determine undue hardship. Explore the implications of the AODA for employers and employees. **Duty to Accommodate: The Meiorin Test** *Definition:* The *Meiorin test* is a three-part test used to determine whether a seemingly discriminatory employment standard is a *bona fide occupational requirement* (BFOR). *Three Parts:* 1. The standard was adopted for a purpose rationally connected to the performance of the job. 2. The standard was adopted in good faith, in the belief that it was necessary to the fulfillment of that legitimate work-related purpose. 3. The standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. This requires the employer to show that it is impossible to accommodate individual employees without undue hardship. *Advanced Concepts:* Analyze case law illustrating the application of the Meiorin test. Understand the employer\'s obligations to accommodate employees with disabilities, including the duty to investigate and implement reasonable accommodations. **Facts to Memorize** 1. **Common Law:** Legal principles established through judicial decisions; *stare decisis* guides future rulings. 2. **Statutory Law:** Laws passed by federal and provincial legislatures; key acts include the Canada Labour Code, Employment Standards Acts, Human Rights Codes, and Occupational Health and Safety Acts. 3. **Constitutional Law:** Divides powers between federal and provincial governments; employment law is primarily provincial except for federally regulated industries. 4. **Employment Relationship:** Defined by control, integration, tools/equipment, and financial risk; misclassification has serious consequences. 5. **Employment Contract:** Requires offer, acceptance, consideration, intention, capacity, and legality; implied terms exist. 6. **Leaves of Absence:** Various types exist under federal and provincial legislation; procedures include notice, medical certificates, and return-to-work rights. 7. **Termination with Just Cause:** Requires serious misconduct or incompetence; standard is high, progressive discipline often required. 8. **Termination Without Just Cause:** Requires reasonable notice or pay in lieu of notice; severance pay may apply in certain circumstances. 9. **Constructive Dismissal:** Fundamental changes to the employment relationship without consent; breach of contract. 10. **AODA:** Promotes accessibility for Ontarians with disabilities; establishes accessibility standards and a duty to accommodate. 11. **Meiorin Test:** Three-part test to determine if a discriminatory standard is a bona fide occupational requirement (BFOR). 12. **Canada Labour Code:** Governs federally regulated workplaces; sets standards for hours, wages, vacations, holidays, and leaves. 13. **Employment Standards Acts (Provincial):** Set minimum employment standards; vary by province. 14. **Human Rights Codes (Federal and Provincial):** Prohibit discrimination based on various grounds; provide remedies for violations. 15. **Occupational Health and Safety Acts (Federal and Provincial):** Regulate workplace safety; employers have a duty to provide a safe workplace. 16. **Pay Equity Acts (Provincial):** Aim to eliminate gender-based wage disparities; establish processes for achieving pay equity. 17. **Independent Contractor:** Provides services independently, with greater autonomy and control over their work; distinct from an employee. 18. **Just Cause:** Serious misconduct or incompetence justifying immediate dismissal without notice or severance. 19. **Reasonable Notice:** Notice period for termination without just cause; depends on factors like length of service and position. 20. **Severance Pay:** Additional compensation upon termination, often in cases of mass layoffs or business closure.