Overview of Legal Framework Chapter 1

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Employment Law for Business and Human Resources Professionals, Revised Fourth Edition

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Employment Law for Business and Human Resources Professionals, 4e.
CHAPTER 1
Overview of Legal Framework

4. • Statute law refers to laws (also called legislation, acts, or
statutes) passed by the federal or provincial government
• Most employee rights contained in statutes apply to both
unionized and non-unionized employees
• Employment statutes historically have set out minimum
standards for working conditions
• New legislation often relates to demographic shifts and changing
social values, such as the Ontario Pay Equity Act
• Other statutes may affect the employment relationship,
such as anti-discrimination legislation
Sources of Employment Law
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5. • How are statutes made?
• Both in Ontario and the federal government, a bill must pass three
readings in the legislature to become a statute
• Public bills are of general application and are introduced by the Cabinet
minister who is responsible for the relevant subject
• Private members’ bills may deal with public matters, but they are
introduced by private members rather than Cabinet ministers
• Private bills cover non-public matters, such as changing corporate
charters
• A bill becomes a statute once it receives Royal Assent
• Regulations: rules made under the authority of a statute
Sources of Employment Law
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6. • Provinces have the majority of authority over passing
employment legislation
• Key Ontario employment statutes:
• Employment Standards Act, 2000
• Human Rights Code
• Labour Relations Act, 1995
• Occupational Health and Safety Act
• Workplace Safety and Insurance Act, 1997
• Pay Equity Act
• Accessibility for Ontarians with Disabilities Act, 2005
Sources of Employment Law
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7. • Federal employment law is restricted by the Constitution Act,
1867 to industries of national importance
• Whether a company is federally or provincially incorporated does not
determine whether it is provincially or federally regulated
• Federal employment statutes include:
• Canada Labour Code
• Canadian Human Rights Act
• Employment Equity Act
• Personal Information Protection and Electronic Documents Act (PIPEDA)
• The Canada Pension Plan and the Employment Insurance Act
apply to both federally and provincially regulated industries
Sources of Employment Law
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8. • The Canadian Charter of Rights and Freedoms was adopted as part of the
Constitution Act, 1982
• While the Charter does not specifically address employment law, the rights
guaranteed within it can affect the workplace when government action is
involved
• Section 1 of the Charter provides that Charter rights are subject to reasonable
limits
• The Charter permits courts to strike down (rule invalid and unenforceable)
legislation that violates Charter rights
• Section 33 of the Charter, known as the notwithstanding clause, permits the
federal or provincial governments to enact legislation notwithstanding a
violation of certain Charter rights
Sources of Employment Law
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9. • Common law is the law that has developed from court decisions,
or case law
• The common law operates on the basis of precedent, or
decisions made by previous courts in similar circumstances
• The principle of stare decisis means that decisions made by
higher courts are binding on lower courts in the same jurisdiction
and in similar situations
• A decision is considered persuasive if it is from another jurisdiction or from a
court of the same or lower level
• Cases may be distinguishable, meaning that the facts or elements of a case
are so different that the principle of a previous decision should not apply
Sources of Employment Law
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10. • Two branches of the common law that affect employment are
contract law and tort law
• Contract law regulates contractual relationships, including the
terms and conditions of non-union employment
• When bringing an action based on the breach of a contract, a plaintiff,
meaning the party bringing the suit, generally seeks damages in the form of
monetary compensation from the defendant
• Tort law is a branch of civil law (non-criminal law) that covers
torts, or wrongs for which there is a civil remedy
• Torts may be deliberate or negligent
Sources of Employment Law
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11. • The court system in Canada is hierarchical, and under certain
circumstances, parties may appeal a decision to a higher court
• Higher courts may overturn the decisions of lower courts when
they have failed to follow precedent
• The Supreme Court of Canada is the final court of appeal, and
its decisions bind all Canadian lower courts
• Provinces maintain lower courts as well as courts of special
jurisdiction, which preside over matters such as small claims,
family law, juvenile offences, traffic violations, and trials of less
serious criminal offences
Judicial Framework
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12. • Administrative tribunals make decisions in specialized areas, such as
employment standards or discrimination
• In employment law, administrative tribunals such as the Ontario Labour
Relations Board have primary jurisdiction over most matters
• Appeals to courts of tribunal decisions are usually limited by statute in a
provision called a privative clause
• Courts retain the jurisdiction to overturn tribunal decisions if a tribunal has
exceeded its jurisdiction, showed bias, or denied natural justice
• An application for judicial review is a request to the court to review the
decision of a tribunal
• Administrative agencies or commissions may be empowered to investigate
complaints or make rulings
Judicial Framework
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13. • Solicitor–client privilege refers to the right to
have certain communications between lawyers and
their clients kept confidential
• It enables individuals to seek legal advice without
being concerned that confidential information may
be disclosed to a third party
• The communication must be between a lawyer and client
• The communication must be connected to obtaining legal
advice
Judicial Framework
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14. • Common law employment decisions may be found in case reporters, which are
periodical publications containing written rulings
• Internet services may be less expensive than case reporters and easier to
use to conduct legal research. Some, such as CanLII, are free.
• Case citations contain information about cases and are useful for locating
specific cases
• Statutes are published by the federal and provincial governments but may also
be found on the Internet
• The federal and provincial governments maintain websites, such as the
Justice Laws website (federal) and e-Laws (Ontario), that collect statutes
and regulations
• CanLII collects federal and provincial statutes and regulations in one place
Where to Find Employment Laws
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15. • Not all persons who are hired to perform work are considered
employees
• An independent contractor is a self-employed worker engaged by a
principal to perform specific work
• The legal rights and responsibilities of the parties depend on the nature
of their relationship rather than the parties’ intentions
• Courts or tribunals may determine that a person characterized as an
independent contractor is actually an employee
• Employers have a number of obligations to employees that they do not
have to independent contractors
Defining the Employment
Relationship
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16. • The independent contractor–principal relationship may be challenged
by an individual wishing to be considered an employee or by a
government agency with an interest in collecting statutory premiums
• If an independent contractor is found to be an employee, both parties
may be liable for statutory premiums or income tax
• The fundamental question is whether the individual is an entrepreneur
or under the control and direction of the employer
• The courts have developed a number of tests, but no single factor
(including the parties themselves characterizing it as an independent
contractor–principal relationship) is determinative
Defining the Employment
Relationship
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17. • It is important to include a number of provisions in the contract—e.g., a
statement that the contract is for a fixed term—to minimize the risk that
a contractor will later be found to be an employee
• It is possible for an individual to be considered an independent
contractor for tax purposes but an employee for the purposes of a
wrongful dismissal action
• An agent is someone who represents another person—the principal—
in dealings with a third party
• Examples include real estate agents, travel agents, and insurance
agents
• Agents are usually categorized as employees
Defining the Employment
Relationship
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