Employment Law - Canadian Constitution - PDF

Employment Law © Jean Pommainville B.A., LL.L., M. FISC| Mana 479 Instructional Methods • Instructional method • Lectures Assessment Criteria • Midterm #1 • Midterm #2 • Final Exam 30% 30% 40% Questions? COPYRIGHT • The content of these slides is copyright protected and owned by their autho...

Employment Law © Jean Pommainville B.A., LL.L., M. FISC| Mana 479 Instructional Methods • Instructional method • Lectures Assessment Criteria • Midterm #1 • Midterm #2 • Final Exam 30% 30% 40% Questions? COPYRIGHT • The content of these slides is copyright protected and owned by their author; • The slides are provided to individual students exclusively for academic and study purposes; • Therefore, they cannot be published or otherwise shared with any other person without the explicit consent of their author; • The Copy Right Act provides for damages and penalties for violations Part 1 The Canadian Constitution Constitution • Heads of power are divide between the federal government and the provincial governments. • Section 91 and 92 of the Constitution describe which of the two of governments have jurisdiction to legislate in a particular area. • section 91 and 92 of Constitution Constitution • s.91 federal government legislates in matters of criminal law, postal services, military, divorce, Indians and lands reserve for Indians, etc… • S.92 provincial governments legislate in matters of property and civil rights, marriage, administration of justice, etc… Constitution • The government who has been attributed the head of power has the exclusive right to make laws concerning that head of power. • If that government fails to legislate the other government’s laws cannot fill the gap. • Federal and provincial legislative powers are mutually exclusive. Constitution • So the provincial governments cannot legislate in the area of criminal law. • Such a law would be ultra vires or unconstitutional. • The constitution clearly divides legislative subject matter between the two levels of governments. Constitution • What happens when a legislative subject matter is not included in the heads of power listed in s.91 and s.92 ? • For example telecommunications and labour relations. • The courts are generally called upon to decide. • TORONTO ELECTRIC COM vs Snider [1925]AC.docx • Snider case Constitution • A 1925 court case considering whether a federal law imposing on employers and employees a Board which was required to make inquiries and attempt to effect a settlement before a strike or lock-out could be declared was unconstitutional? • The Privy Council declared that this was an interference with the civil rights of the employer and employees under the Head of Power “property and civil rights” 92.(13) Provincial jurisdiction. Constitution The Rule • Since this judgment was rendered the courts in Canada have consistently upheld the rule that: • In labour relations, provincial jurisdiction is presumed because these issues are more closely related to “property and civil rights” a provincial head of power under 92(13) Constitution The Explicit Exceptions to the Rule • (1) Federal Employees • The labour relations between the federal government and federal employees, or government employees of the Yukon, Nunavut, Northwest Territories. • The province has no power to regulation the working conditions of these employees. Constitution The Explicit Exceptions to the Rule • (2) Federal enterprises that are directly related to one of the federal heads of power in s.91. • Example railways—the right to regulate the industry necessarily implies the right to regulate to labour relations of that industry. • This is the exception under which the precursor to the Canada Labour Code (CLC) was determined to be constitutional by the Supreme Court of Canada (SCC) Constitution The Explicit Exceptions to the Rule • Other examples of Federal enterprises • Railway • Trans border and interprovincial ship lines and shipping by boat • Airports, airlines • Radio Stations • Banks Constitution The Explicit Exceptions • (3) POG “…peace, order and good government” (residual powers of the federal government); • These are subject matters not expressly mentioned in the Constitution by fall to the Federal government under POG; • They also include works and undertakings which are to the general benefit of Canada or more than one province. For example Telecommunications Constitution The Implicit Exceptions to the Rule • (1) Criminal Law can implicitly regulate certain areas of labour relations because the law may make certain actions illegal. (interference with freedom of association-picketing-vandalismsabotage). Constitution The Implicit Exceptions • (2) Indians and lands reserved • Rule of provincial jurisdiction applies to on reserve enterprises; • In order to exclude the rule the enterprises must be federal in nature or regulated directly by the Indian Act. • NIL Tu,O 2010scc45.wpd.docx • NIL/TU:O Case Constitution The Implicit Exceptions to the Rule • (3) State of National Emergency • Such war—would allow Federal Government to temporarily suspend the application of normal labour relation rules. Constitution Application • (1) Qualification of the Law • If the true nature and essence of the law is a labour law it will not apply to the other level of government or their enterprises. • Application of the Act respecting occupational health and safety (a provincial law) to Bell Canada employees (federal employees) • Preventative leave; right to refuse to work, inspections, etc… these work conditions could not apply to federal employees. Constitution Application • (2) Qualification of the enterprise • The law under which the company is incorporated is NOT important in determining whether it is a federal of provincial enterprise; • The fact that it receive federal subsidies is also NOT important. Constitution Application • Look at the nature of the enterprise and its normal and habitual activities. • In order to avoid application of the provincial jurisdiction rule, these activities must be integrally related a federal head of power. (direct) Constitution Application • An otherwise provincially regulated enterprise can become federally regulated if it becomes an integral part of a federally regulated enterprise; • Northern telcom [1983] 1 SCR 733.docx • Northern Telecom Case • Installation services offered by NTC to Bell were an essential, vital and integral part of Bell’s operations and thus were federally regulated (indirect) Constitution Application • (3) Indivisibility---once an enterprise is qualified as federal it cannot be divided. • Example if transport company does intra-provincial, extra provincial, and international transport all of the labour relations of the enterprise will be governed federally. • Exception Victoria Empress Hotel and CP Railway