Employment law chapter 1

1. 1. Psychology
2. Sociology
3. History
4. English/ Literature
5. Philosophy
6. Economics
7. Business
8. STEM subjects
9. Hospitality
10. Health
11. The Arts – music, fine arts
12. Journalism
WHAT IS YOUR ACADEMIC
BACKGROUND?

2. BREAKOUT
GROUP
EXERCISE
1. Take 10 minutes for a round of self-
introductions that includes:
a) Your name
b) One thing about yourself that you’d like others to
know
c) What your first paid job was (if you’ve had one) and
one HR-related lesson you learned from it.
3. Is there a common theme in your stories about
your first jobs?
◦ RETURN AND DISCUSS IN THE FULL CLASS

3. EMPLOYMENT LAW

4. Agenda:
Ch. 1
(Employment
Law “101” –
non-union)
1. Where do employment laws come from?
2. Who makes them?
3. Why are they made?
4. How are they made?
5. Who interprets and enforces them?
6. From Week 2 on, we’ll look at the
CONTENT of these workplace laws

5. I. Common Law
Judge-made law that has evolved over time
Remedy - $ Damages awarded
II. Statute Law
5
EMPLOYMENT LAW (Non-Union Employees)
– 2 Distinct Sources
Created by legislatures
e.g. ESA, OHRC, OHSA, PEA,
WSIA…wide range of remedies

6. THE COMMON LAW: 2 Key Branches
Contract Law
covers how enforceable contracts are
formed, what happens when they are
breached e.g. wrongful dismissal
Tort Law
Wrongs for which courts
have created a legal
remedy
e.g. defamation

7. Example of a
Wrongful
Dismissal
Case:
Tong v. Home Depot of
CanadaInc.,2004 CanLII
18228 (ON SC)
1. Go to www.canlii.org
2. Click “Ontario” and then “Superior
Court of Justice”
3. In Document Text search bar, put:
“Tong”
4. Click case link: Tong v. Home Depot of
Canada Inc.
https://www.canlii.org/en/on/onsc/doc/2004/
2004canlii18228/2004canlii18228.html?resultI
ndex=1

8. TONG v. HOME DEPOT
Tong Decision
Answer the following:
1. Plaintiff ‘s name? ___________________
2. Defendant ‘s name? _________________
3. Judge’s name? __________
4. Year decision made? _________________
5. After quickly reading decision, briefly
identify 4 lessons this case holds for HR
students/practitioners
(a)_______________________________________
(b)_______________________________________
(c)_______________________________________
(d) ______________________________________

9. Common Law claims:
Disputes heard by hierarchical court system
Based on legal precedent
1. Small Claims Court (under $35,000)
2. Superior Court of Justice
3. Ontario Court of Appeal
4. Supreme Court of Canada

10. Burden and Standard of Proof
Civil Cases (non-criminal)
◦ e.g. Smith v. ABC Inc.
◦ The plaintiff (Smith, the
party bringing the action
against the defendant,
ABC Inc.) must prove claim
on a “balance of
probabilities”
◦ 51% = it’s more likely that
not
Criminal Cases
◦ E.g. R v. Jones
◦ “R” or “the Crown” (the
“government”) must
prove the accused’s
(Jones’) guilt “beyond a
reasonable doubt”
◦ A much higher standard of
proof

11. STATUTE
LAW
SEE CH. 1 VIDEOS
ON HOW BILLS
BECOME STATUTES
(PARTS ONE & TWO)
UNDER MODULE 1
MINI-VIDEOS
LOCATING CURRENT
BILLS AND THEIR
STATUS

12. Why are workplace statutes made (or amended)?

13. Who can pass
workplace
laws?

14. Do Federal or Provincial Employment Laws apply?
Federal employment laws
apply to federal government
EEs and EEs in:
Banking, telecommunications,
broadcasting, inter-provincial
transportation and shipping,
railways, post office…
__ % of EEs in Canada
These EEs are covered by federal
laws e.g. the Canada Labour
Code, Canadian Human Rights
Act, etc.
Provincial employment laws
apply to:
Everybody else
__% of EEs
EEs in provincially-regulated
industries are covered by their
province’s laws e.g.
Employment Standards,
Human Rights

15. Am I covered by federal or provincial employment statutes?
I work in a bank in Regina, Saskatchewan.
________
I work in construction in Vancouver, British Columbia.
________
I work at Bell Canada in Toronto, Ontario.
________
I work at a grocery store in Montreal, Quebec, that has outlets throughout
Canada.
________
I’m a recruiter in a recruitment firm in St. Johns, Newfoundland.
________

16. What are the key employment statutes in Ontario (and
federally)?
1. Human Rights Code (HRC)
2. Employment Standards Act (ESA)
3. Occupational Health and Safety
Act (OHSA)
4. Labour Relations Act (LRA)
5. Pay Equity Act (PEA)
6. Accessibility for Ontarians with
Disabilities Act (AODA)
7. Workplace Safety and Insurance
Act (WSIA)
1. Canadian Human Rights Act
2. Canada Labour Code
(equivalent to Ontario’s ESA,
OH&SA, and the LRA)
3. Pay Equity Act
4. Accessible Canada Act
5. Employment Equity Act
6. Personal Information
Protection and Electronic
Documents Act
Ontario Statutes Federal Counterpart
Most provinces have comparable laws to those above.

17. Locating Ontario Statutes & Regulations
QSee Ch. 1 Video on Statutes v Regulations under Module 1 Mini-videos
uizzes)
Search: canlii Ontario, then click Consolidated Statutes
Regulations

18. Disputes arising from Statutes
Disputes based on
statute are heard by
specialized Tribunals:
e.g. Human Rights
Tribunal, Ontario Labour
Relations Board

19. How does Statute Law & the Common Law fit together?
3
Common Law
Parties can negotiate whatever contract terms
they want - as long as they are legal and at least
match statutory rights
Statute law
e.g. ESA, OHRC, PEA, OHSA,
WSIA, LRA, AODA
These are core rights that
cannot be contracted out of.

20. F i n a l l y , i n 1 9 8 2 :
T h e C a n a d i a n C h a r t e r o f R i g h t s a n d F r e e d o m s

21. Canadian Charter of Rights and
Freedoms
Charter of Rights and Freedoms
1. It’s part of Canada’s
constitution (so takes
precedence over every
other law)
2. It only applies to
government actions
(i.e. it’s a restraint on
government power).
3. Rights are not absolute
Subject to:
s.1 - reasonable limits clause
s.33 - notwithstanding clause
See Ch. 1 Video on “Limits to Charter Rights” under Module 1 Mini-videos

22. Charter Equality Section (s. 15)
“Every individual is equal
before and under the law
and has the right to the
equal protection and equal
benefit of the law without
discrimination and, in
particular, without
discrimination based on
race, national or ethnic
origin, colour, religion, sex,
age or mental or physical
disability.”
Crucial Test:
Does distinction relate to a
prohibited (or analogous)
ground
+
Does that distinction
perpetuate an historical
disadvantage or stereotype?
(e.g. P. 13 - Vriend case)

23. What Do You Think?
 After adopting a newborn baby, Joanne
applied for Employment Insurance (EI)
benefits.
 At the time, biological mothers who qualified
for EI were entitled to a total of 52 weeks (17
weeks maternity benefits + 35 weeks parental
benefits).
 However, as an adoptive mother, Joanne was
only granted the 35 weeks of parental
benefits.
 Joanne challenged this denial based on s. 15
Equality Rights) of the Charter.
 Do you think her Charter challenge was
successful?

24. What Court
Decided
Held:

25. Chapter
Summary –
Legal
Framework
(Ch. 1)
1. There are 2 main sources of employment law in Canada:
◦ The common law (i.e. contract and tort law): judge-made law that
evolves over time; it only applies if it does not conflict with
statute law
◦ Statute law (laws passed by legislatures)
2. The non-union employee’s employment relationship is based on an
individual employment contract.
3. The Charter only applies if government action is involved. However,
where it does apply, it takes precedence over any other laws
because it is part of Canada’s constitution.
4. 90% of EEs are covered by the employment laws of their province.
The remaining 10% work in “federally regulated” industries (e.g.
banking, telecommunications) and therefore are covered by
federal laws such as the Canada Labour Code.
5. The common law is “residual” or “default” law: it applies where
there is no statute in a given area or where it supplements a
statutory right. For example, non-union EEs have both common
law contractual rights and rights under statute (statutory rights) if
their employment is terminated without just cause.
6. www.canlii.org is a terrific resource to find Canadian legal decisions
and statutes.

26. In future classes, we’ll
discuss the content of these
laws:
“The vast majority of cases that come through the
door at our firm are some version of broken
telephone…
where the parties misunderstood each other. We
rarely find employers who are trying deliberately to
harm their employees. Rather, there is an ongoing
balance to maintain between business stability and
employee workplace satisfaction.”
Lisa Stam, Nov. 30/22, Spring Law (Employment
Lawyers)
26

27. Comparison is the thief of joy
Attributed to Teddy Roosevelt, and others