Chapter 1 (Module 1)

There are two main sources of employment law in Canada, which are:

 Statute Law (Legislation passed by the government)

Example:
Minimum employment standards, anti-discrimination, and health and safety laws
are provided through Statute Law.
“The Ontario Human Rights Code” is an example of statute law.

 Common Law (Judge-made law)

Example:
Wrongful dismissal actions are based on the Common Law.
-----------------------------------------------------------------------------------------------------------
Statute Law is a law passed by the federal or government. It is sometimes
referred to “legislation” or “acts”
Regulations are also known as delegated legislation.
 STATUTE LAW

How statutes are made?

The statute takes the form of a written bill.

To become a provincial statute in Ontario, a bill must pass three readings in
legislation, which is located at Queen’s Park in Toronto. (related to employment)
To become a federal statute, a bill must pass three readings in House of
Commons and the Senate in Ottawa.

There are three types of bills:

Public bills (it’s put by the Cabinet minister. Example, bills concerning
employment law are put forward by the minister of labour)
Private bills (bills that cover non-public matter, ex. Changing corporate
charters.
Private member’s bills. (bills that deal with matters of public
importance, but they are put forward by a private member of the
legislation, not by the Cabinet minister, therefore, they don’t have
chance to becoming a law).

A bill becomes a statute once it receives royal asset.

While the statute contains main requirements of the law, the detailed
rules on how to administer a statute are found in its regulations.

Regulations are also known as delegated legislation:

Regulations are rules made under the authority of a statute.

Example: Employment Standards Act states that there in a minimum wage for
occupations in Ontario (main requirements of the law). However, the exact dollar
amount of that minimum wage for many occupations are found in the
regulations.

What levels of government can pass Employment-related statutes?

Canada has three levels of government:
Federal: (the federal government has the authority over only 10 percent of
employees in Canada, because the government’s authority was limited to
industries of national importance, such as banks and airlines)
Provincial: (as a result of the decision of the federal government, 90 percent of
employees in Canada are covered by Provincial employment legislation)
Municipal: (Municipalities have no jurisdiction over employment; however, they
can pass bylaws on matters that affect the workplace (ex. Smoking)
The key employment statutes in Canada:

 The Employment Standards Act.

It sets out minimum rights and standards for employees, such as minimum wages,
overtime, hours of work, pregnancy and parental leave, vacation and public
holidays.
 The Human Rights Code.
It’s designed to prevent discrimination based on specified prohibited grounds.
 The Labour Relations Act.
It deals with the rights of employees to unionize and the collective bargaining
process.
 The Occupational Health and Safety Act.
It provides the requirements and responsibilities of parties to create a safe
workplace and preventing workplace injuries and accidents.
 The Workplace Safety and Insurance Act.
It is a no-fault insurance system for work-related injuries and diseases.
 The Pay Equity Act.
It requires employers to identify and correct gender discrimination that may be
present in their compensation practices. It also requires employers with ten or
more employees to provide equal pay for work of equal value.
All of these employment statutes except the Labour Relations Act, are covered in
this text, because the Labour Relations Act deals with unionized workplaces.

The Human Rights Tribunal is designed to defer hearing an application that is

submitted from a person.
Federal Employment Statutes:

Federal employment law covers employees who work for a federally regulated
company, such as bank or airlines.

The two federal employment statutes are:

The Canada Labour Code. It covers employment standards, collective bargaining,

and health and safety.
The Canadian Human Rights Act. It covers human rights and pay equity.

Common Law
Common law is a judge-made law that it has developed over the years through
court decisions. It is applied where there is no statute covering a particular area
or where governing statute is silent.
Decisions made by higher courts are binding on lower courts in the same
jurisdiction if the circumstances of the same cases are similar. It is called Stare
decisis.
Stare decisis means to stand by things decided.
The decision is considered persuasive, rather than binding, when a court is
persuaded to follow a precedent from another jurisdiction or from a lower court,
although it is not bound to do so.
When a lower court decides not to follow a previous decision from a higher court
in the same jurisdiction, or it finds that the facts or other elements in the previous
case are so different from those of the current case is called distinguishable.
The branches of the common law that affect employment are:

Contract Law
The common law of contracts is fundamental to employment law because the
legal relationship between an employer and non-union employee is contractual.
The general principle of contract law determines whether an employee-employer
relationship exists and what remedies apply to a breach of the employment
agreement.

Tort Law
Tort low is a branch of civil law (non-criminal law) and covers wrongs
and damages that one person or company, causing to another
independent of any contractual relationship between them.
Administrative tribunals have established to make decisions in areas
such as employment standards or discrimination.
A request to a court to review the decision of an administrative tribunal
is called (an application for judicial review).
The reviewing court does not have to agree with the tribunal’s decision,
unless it is supported with reasons and facts. This is called a standard of
review, that recognizes the experience of specialized administrative
bodies and the authority conferred on them by the legislature.
Administrative agencies are empowered to investigate complaints,
make rulings, and issue orders.
A case citation tells you how to locate a specific case. For example,
finding case title, volume number of the case reporter, series number,
page number, and court.
Questions:

The Canadian Charter of Rights and Freedoms applies only where

government is involved. However, the Charter can indirectly affect
private sector employers. How?

An employee cannot use the Charter directly to challenge a private

sector employer’s employment decision. (Charter states that it applies
only to matters related to provincial and federal governments).
However, as a part of Canada’s Constitution, the Charter is part of the
“supreme law of land”. This means that all other statutes must comply
with its requirements and any legislation that violates a Charter
requirement may be stuck down, and then made invalid.
Therefore, an employee may use the Charter to challenge an
employer’s decision or policy if that decision or policy is allowed by
federal or provincial legislation
For example: Agricultural workers challenged the exemption of farm
workers from coverage by Ontario’s occupational health and safety
legislation under the Charter’s equality rights provision.
Describe two possible tools or rules that a judge may use in
determining how to interpret a statute in a particular case.

The first tool would be mischief rule. The judge or turbinal looks at the
problem that a statute was intended to fix and applies that rational to
the case under consideration.

Another tool that judges use are internal aids, found in the statute itself.
For example, the preamble in Ontario’s Human Rights Code has
encouraged courts to explain the legislation in a broad and liberal
fashion.

The External aids, such as legal dictionaries, are sometimes used.

Joanne and her husband were unable to have children and they
decided to adopt. When their adopted baby daughter came into their
care, Joanne applied for both pregnancy benefits (17 weeks) and
parental benefits (then 35 weeks) under the federal government’s
employment insurance program. Joanne was given parental benefits
but denied pregnancy benefits on the basis that she was never
pregnant. Joanne challenged this denial based on the equality rights
provision in the Charter.

a. In your opinion, was denial of benefits to an adoptive parent fair?

Adoptive mothers do not experience pregnancy and therefore they do

not have the same issues as the pregnant women.

However, the physical recovery only includes 17 weeks of pregnancy

leave, and much of it is for mother-child bonding, and this is also required
by adoptive parents.

If adoptive mothers are eligible for pregnancy leave, the adoptive fathers
would be eligible as well.

Did it contravene s. 15 of the Charter? Explain your answer.

The Federal Court of Appeal found that denying Joanne pregnancy leave
was not a violation of the Charter. The Court applied the test for
discrimination found in the Law case; it stated that a “reasonable”
person would not find that the distinction made by the legislation
created a negative stereotype of a group (i.e., adoptive mothers) and
therefore it was not “discriminatory.”

The Court also noted that if adoptive mothers are eligible for pregnancy
leave, adoptive fathers and all fathers are eligible too
 Chapter 2 & 5 – Module 2

Chapter 2

The Ontario’s human Rights Code is designed to prevent

discrimination and other prohibited grounds.

It applies to both private and public sector.

Discrimination in employment is prohibited on 14

grounds.

The code also prohibited sexual harassment and

discrimination in the workplace.

The Ontario’s Human Rights Code provides that everyone

has the right to be free of discrimination in five areas:

 Service’s and goods

 Accommodations (housing)
 Employment
 Contracts
 Membership in vocational associations
Employment is the one of the five areas that are covered
in this Code, and over 63 percent of human rights
applications arise in the workplace.

Employment include full and part-time employment,

contract work, temporary work, volunteer work.

The Human Rights Code states that every person should

be treated equally and with respect to employment
without discrimination, on the bases of sexual
orientation, age, race, family status, disability, creed, sex,
ancestry, place of origin, colour, marital status,
citizenship, and ethnic origin, record of offences.

Sexual orientation: it concerns person’s sexuality and includes lesbian,

gays, bisexual.

Colour: Colour refers to a skin colour.

Ethnic origin: it has more of a cultural component than ancestry.

Protection is not applied to people who have recently arrived in Canada.
It only can apply to third or fourth generation Canadians.

Race: it is not defined a ground, but it can be related to other grounds

such as colour and ethnic origin.

Place of origin: it refers to the country or origin of birth.

Citizenship: it refers to the discrimination on the basis of citizenship
status, including status of refugee or immigration.

Creed: this ground protects people from discrimination on the basis of

religion or faith, but NOT on the basis of the political convictions.
Example, the ground is prohibited one person from attempting to force
another person to accept a particular religion or belief.

Ancestry: it refers to family descent and is closely related to place of

origin.

Age: age is defined as 18 years old or older. For example, this ground
protects a 19-year-old, who is denied a position because of a negative
stereotype about teenagers. Also, a 67-year-old who is rejected because
he does not fit the company’s youthful image.

There are a several ways to limit the potential for human rights problems
arising from the interview. These include the following:

 Accommodate disabilities:

If the job applicant is unable to attend an interview because of the

disability, an employer must accommodate the candidate so that he has
an equal opportunity to be interviewed.

 Have a standard set of questions:

Not questioning only females about their ability to travel , or questioning

only certain candidates about whether their race would present
difficulties in getting along with clients.
 Use interview teams:

If a candidate faced a discrimination, there are several people to recall

who took place during the interview.

 Be aware of the prohibited grounds:

The interviewer should not ask questions that relate to prohibited

grounds

Module 2 – Question 10

Increasingly, employers are using social networking sites to find out more
information about job candidates in the hiring process and basing their hiring
decisions in part on this information. Is this a smart move or a human rights
trap? What are some of the upsides and downsides of this approach?
Social networking sites are increasingly being used by employers to both recruit
and screen job applicants and find more information about the job candidates. On
the downside, the information gathered may touch on many prohibited grounds,
including sex, age, marital status, family status, sexual orientation, and creed. It
may also show physical or mental disabilities.
There is also the possibility that the information found relates to a different
person, especially if the candidate’s name is a common one. Another is the
problem of ensuring the accuracy of the information. For example, the
information could have been placed on the site by a former friend or someone
who was simply joking around.
From a legal perspective, the safest time to perform an online search is after a
conditional offer of employment. Applicants should be made aware early in the
process that an Internet-based search is included as part of a full background
check.
 Chapter 5

The duty to accommodate:

The importance of accommodations lies in meeting the needs of the

employees in the workplace.
According to the Ontario Human Rights Commission’s Policy and
Guidelines on Disability and Duty to Accommodate, the principle of
accommodations involves three factors:

 Individualization: Each person’s needs differ from another person’s

needs. A solution that meets one person’s requirements may not
meet another’s.

 Dignity: People must be accommodated in a manner that most

respects their dignity, including privacy, confidentiality, and comfort.

 Inclusion: Job requirements and workplaces must be designed with

everyone in mind.
The employer must have a duty to accommodate their employees.
The obligations of the employer who get the accommodations from
employees are as follows:
 Accept the employee’s request for accommodations in good faith.
 Obtain opinion or advice when necessary
 Keep the accommodation request and the action taken
 Maintain confidentiality
 Pay for the cost of the required medical information or documentation
 Explain to an employee why the accommodation would cause “undue
hardship”, such as extreme financial costs.

The obligations of an employee who seeks accommodation as follows:

 Request accommodations
 Explain why accommodation is required
 Answer questions or provide information (medical information)
 Participate in discussions regarding possible solutions to
accommodation needs.
 Work with an employer on regular basis to manage the
accommodation process.
The obligations of unions are as follows:
Take an active role as a partner in the accommodation process
Share responsibility with the employer to simplify accommodations
Respect the confidentiality of the person requesting accommodation.
Support accommodation measures irrespective of collective
agreements
 Undue Hardship

Accommodation is the word used to describe the duties of an employer, service provider or
landlord to give equal access to people who are protected by Ontario’s Human Rights Code.
To accommodate someone means to remove the barriers which prevent people from gaining access
to jobs, housing, and the use of goods, services and facilities.

Most commonly, the duty to accommodate arises in the employment context where an employee
suffers a disability such as an injury, illness or addiction that prevents them from continuing to do
his job in the same manner as before.

The duty to accommodate is not unlimited. The limit to the duty to accommodate is called "undue
hardship."

An employer is not required to accommodate a person’s needs beyond the point at which the
accommodation would cause “undue hardship” to the business.

Undue hardship occurs if accommodation would create stressful conditions for an employer
such as extreme financial costs or serious disruption to business
Under the Human Rights Code, only these three factors, which are: costs, outside sources of
funding, and health and safety requirements, are specifically recognized as being relevant to a
discussion of undue hardship.
Cost
The Commission’s guidelines states that If an employer is claiming undue hardship, the Tribunal will
only consider whether the cost is extreme, and the employer must be able to provide actual
evidence for undue hardship.

The employer must consider outside sources of funding, such as grants or tax credits.

Health and Safety Requirements

The Commission’s guidelines states that the employer must show the risks
evaluated after all accommodations have been made to reduce them, are still
serious. For example, reducing the safety concerns or problems through using
medication.
The methods accommodating are:

Accommodating Employees with Disabilities:

The Code recognizes that the individuals with a disability may not be able
to perform every part of every job.

An employer has to accommodate a person with a disability, to enable

the employee to perform the duties of the job.

An employer is required to test disabled people individually to determine

whether their disability affects their ability to perform the duties of the
job.

Accommodations may include:

 Building ramps and wheelchair-accessible washrooms

 Buying equipment or vehicles

 Changing the way, the work is done (providing stools, special

software, modifying work hours)
 Accommodating employees who abuse drugs or alcohol

Canadian law defines alcohol and drug abuse as a disability and

therefore it considers to be a prohibited ground of discrimination.

 Accommodating employees’ religious beliefs and practices

Accommodating an employee’s creed incudes, the bases of dress

code, break policies, work schedules, and religious leave.

According to Meiorin, the break policies and work schedules should

be flexible enough to accommodate daily periods of prayer for
employees whose religion requires them.

 Accommodating employees’ pregnancy and breastfeeding needs

Pregnant employees require a temporary accommodation in the

workplace, such as flexible work schedule, increased break time,
appropriate workplace support for breastfeeding.

 Accommodating employees’ family status

Employers may assist employees who are balancing work and family
responsibilities.

Employers may need to provide flexible work hours for an employee who
is caring for aging parents.
Liability

The employer is vicariously liable, which means that he’s legally

responsible for the actions for the discriminatory acts of its agents and
employees in the workplace. It is also directly liable for the actions of
management.

Although, the employer’s liability of sexual harassment is committed by

management employees, such us (directing minds of the organization),
an employer may avoid liability for harassment by non-managerial
employees.

Clients or customers who act in a discriminatory or harassing way toward

and employee in the employer’s workplace are not liable under the code.
However, the employer may be liable for their behaviour if the following
criteria:

He knew about the behaviour (harassment)

He had control over the situation
He could have done something to prevent or stop the behaviour
Your employer tells you that he’s heard that a supervisor from the
purchasing department made a pass at two employees at the
company picnic. What should the employer do? Why?
Ontario’s Human Rights Code prohibits sexual harassment. This is
defined as a course of unwelcomed comment.
Employers are legally responsible for actions committed by employees
during business-related social activities. Even without a complaint from
the two employees involved, the employer should determine if the
situation is true. If in fact the supervisor made a pass at two employees,
the employer should follow the matter.
The employer should meet with the supervisor to find out the facts of
the situation, and also the employer should meet with any witnesses.
The employer should have the supervisor review its anti-harassment
policy so that he is clearly aware of it.
The employer should ensure that its anti-harassment policy is posted in
a visible location and should conduct training sessions or workshops to
show the importance of this policy.
The ESA provides seven types of statutory leaves, such as: pregnancy
parental, personal emergency, family medication, declared
emergency, reservist, and organ donor.
The employer is not required to pay employees while they are on
statutory leave.

Pregnancy leave

A pregnant employee has the right to take up to 17 weeks’ unpaid

time off work. The employee may be eligible for employment
insurance benefits during this time, but the employer is not required
to pay the employee during the leave.
To qualify for pregnancy leave, the employee must have been hired at
least 13 weeks.
A pregnancy employee is supposed to give her employer at least two
weeks’ written notice before beginning her leave
It is up to an employee not an employer to decide when pregnancy
leave may be taken.

Family medical leave

Employees are entitled to take up to 8 weeks of unpaid leave to care
for an ill family member.
Employee must provide a certificate from a health case practitioner
indicating that the family member has a serious medical condition and
there is a significant risk of death within 26-week period.
Parental leave
To qualify for parental leave, an employee must have been hired at
least 13 weeks before the leave begins
All other parents must begin parental leave within 52 weeks after the
child is born
A pregnant employee is supposed to give her employer at least two
weeks’ written notice before beginning of parental leave
An employee who decides to return to work earlier than the
previously scheduled date must provide the employer with at least 4
weeks written notice.
Both parents are entitled to take the full period of parental leave.
For employment insurance benefit purposes, one or both parents may
apply for the 35 weeks for EI parental benefits.

Personal emergency leave

It entitles employees to take up to ten unpaid days of leave each
calendar year to deal with certain emergency situations
Emergency leaves are allowed for any of the following reasons:
 Personal illness, injury, medical emergency
 Death, illness, injury, medical emergency, relating to a spouse,
child, grandparent
 Brother or sister of the employee

The employer may request a proof from employee that the leave is
required.

It applies to full, part time, and temporary employees.

An employee who has been on pregnancy leave calls you to say that
she will need more flexibility in her schedule when she returns to
work because of childcare needs. How should you respond?
From the point of view of good employee relations, employers may try
to assist employees who are balancing work and family responsibilities.

Employers may need to provide flexible work hours for an employee who
is caring for aging parents.

From a legal point of view, the case law is evolving. an employer should
respond to such a request in good faith and consider whether greater
flexibility is possible without leading to undue hardship.
For example, an employee returning from pregnancy leave requested a
change in hours of work from 9 a.m. – 5 p.m. to 9:30 a.m. – 5:30 p.m. to
meet childcare obligations, such a request should be granted unless the
employer has legitimate reasons to deny it.
Entire Agreement Clause:
This clause states that the signed contract constitutes the entire
agreement between the parties.
Severability Clause:
This clause provides that if a court invalidates part of the employment
contract, it will not affect the validity of the remainder of the
agreement. Severability clause may be important where there is non-
competition provision in the contract.

Overtime:
Employers must pay employees overtime pay at the rate of 1.5 times
their regular rate of pay after they work 44 hours in a week.

Probationary periods are three to six months, depending on the nature

of the position.

The probationary period also allows an employer to terminate an

employee who is not doing well at their job or is otherwise deemed not
suitable for a particular position or any position.
Module 3 Questions

Describe the circumstances in which an employee may be terminated, without

reasonable notice, for having provided inaccurate information on a job
application form or during an interview. Is it fair that an employee may be
terminated in these circumstances, even where he or she has been performing
the job satisfactorily for some time? Why or why not?
Many employers may choose to terminate an employee if they discover that the
employee lied on the application.
if the false statement related to the qualification or work experience has a
significant impact on the hiring decision, an employer can dismiss an employee as
a result of that misstatement, even if the employee is performing the job
satisfactorily.
False statements written in the application, that are not necessarily material, lead
to lack of honesty. This is so true, since the job requires a high degree of trust.
Coney was hired by a well-known consulting firm. Although the firm had expected great
things of him based on his past experience and academic achievements (including having a
PhD from the University of Illinois), he exceeded even its expectations. After two very
successful years with the firm, Coney applied for partnership and, as part of the admission
process, he was asked to provide evidence of his PhD. After Coney claimed to have moved so
many times that he lost the documentation, the firm called the University of Illinois, only to
be told it had no record of Coney – at all. When confronted, Coney said it was an honorary
degree. Now probing further, the employer offered to fly to Chicago with him to verify his
honorary degree, but Coney declined. The firm concluded that the PhD was fabricated (in
fact, it turned out he did not have a university degree at all) and it fired him for cause –
meaning no advance notice or severance package. Coney sued for wrongful dismissal. Do you
think he will be successful?
This misrepresentation is the main reason for dismissal.

Coney’s misrepresentation reflects on his credibility and trustworthiness and shows a

lack of honesty.

As a high-level consultant, having a lack of trustworthiness affects the employment

relationship negatively.
What are the advantages of a written employment contract over an oral one? Are there any
disadvantages?

 A well-drafted contract reduces the risk of misunderstandings between the employer and
employee.

 Difficult issues can be addressed at this early stage in the employment relationship, when the
parties are positively interacted toward one another.

 It enhances the certainty by providing a court with a clear record of the terms and conditions
of employment.

 There are some disadvantages to a written contract. From the employer’s point of view, the
contract may end up limiting the employer’s ability to make changes to the terms of
employment.

 From the employee’s point of view, having a written contract has both advantages and
disadvantages. It makes it more likely that terms such as termination notice will be addressed.

What are the main legal issues that can affect the enforceability of an
employment contract?

Lack of “consideration” — the failure of the employer to provide “something of value” in

exchange for the promise given by the employee.

Inequality of bargaining power — the employee pretends that the contract is unreasonable and
one-sided, because of their failure to understand what was being bargained for, or due to a lack
of / inequality of bargaining power.

Obsolescence — the employee argues that the contract no longer represents the relationship
between the two parties because the job has significantly changed since it was entered into.
Failure to meet minimum statutory standards — if some term of the contract does not at
least match minimum standards set under legislation, it will be invalid.
Use of ambiguous language — where the wording of the contract could have more than one
meaning
In a non-competition clause, a martial arts instructor was restricted
from teaching at, owning, or operating a martial arts school within a
ten-mile radius of his employer’s business for one year after leaving
employment. The instructor quit within two months and opened a
martial arts school half a block from his former employer. Is the non-
competition clause enforceable? Discuss.
Although courts generally do not like to enforce non-competition agreements
since they restrict a former employee’s ability to earn a living, this is an
example of circumstances where a “non-compete” clause might be enforced.
The particular clause is quite restricted in geographic scope (limited to a ten-
mile radius of the employer’s business) and the time involved is one year.
Therefore, if the employer can show that the clause goes no further than is
necessary to protect its legitimate business interests, and that a non-
solicitation clause would not be sufficient in the circumstances, it may be
enforceable.