BLAW 3905 Reading Comp Answers 1

WEEK 1 - Legal & Judicial Framework of Employment Law

Question 1
The Canadian Charter of Rights and Freedoms applies only where government is in-
volved. However, the Charter can indirectly affect private sector employers. How?

• An employee cannot use the Charter directly to challenge a private sector em -

ployer’s employment decision or policy. (Section 32 of the Charter states that it ap-
plies only to matters related to the federal and provincial governments.)
• However, as part of Canada’s constitution, the Charter is part of the “supreme law of
the land.” This means that all other statutes must comply with its requirements and
any legislation that violates a Charter requirement may be struck down and thus
made invalid. (This principle is subject only to the “notwithstanding clause” under
section 33 of the Charter and it has seldom been used.)
• Therefore, an employee may use the Charter to challenge an employer’s decision or
policy if that decision or policy is based on federal or provincial legislation that ar -
guably infringes the Charter. Examples of this include:
• Agricultural workers have challenged the exemption of farm workers from cov -
erage by Ontario’s occupational health and safety legislation under the Charter’s
equality rights provision.
• A disabled employee has successfully argued that the provisions in employment
standards legislation that exempt employers from paying severance pay to some -
one whose employment contract has become “frustrated” due to disability con-
travenes the equality rights provisions of the Charter.

Question 2
Describe two possible tools or rules that a judge may use in determining how to interpret a
statute in a particular case.

• One tool is the “mischief rule.” The judge or tribunal looks at the problem that a
statute was intended to remedy and applies that rationale to the case under consider -
ation. As one example, in Jantunen v. Ross, the court had to decide whether the de -
fendant waiter’s tips were “wages” for the purposes of the Wages Act. If they were,
only 20% of his tips would be subject to garnishment (payment to satisfy a creditor).
The court decided tips were “wages” in this context because the underlying intent of
the legislation was to allow a debtor to continue to support himself while having his
wages garnisheed. Because the defendant waiter’s tips were a significant portion of
his earnings, the intent of the legislation was best met by limiting the extent to
which tips were subject to garnishment.
• Another tool courts use are “internal aids” found in the statute itself. For example,
the expansive purpose section (sometimes called a preamble) in BC’s Human Rights
BLAW 3905 Reading Comp Answers 2

Code has encouraged courts to interpret the legislation in a broad and liberal fash -
ion.
• External aids, such as legal dictionaries, are sometimes used. A rather funny exam-
ple of this was a case where the court had to decide whether mushrooms were veg -
etables. If they were, employees of mushroom growers would be exempt from cer -
tain Employment Standards Act provisions. The court used, among other aids, the
dictionary definition of the word “mushroom.”

Question 3
The Federal government’s jurisdiction over employment law is limited to industries that
are of “national importance”. Explain what this concept means giving examples to as
many industries as possible. Provide an example of a company that falls into each category
you come up with. Come up with at least 5 industries and 5 corresponding company exam -
ples.

• In the 1920s several groundbreaking decisions were made by Canadian Courts (in -
cluding, Toronto Electric Commissioners v. Snider) which sought to clarify who
had jurisdiction to regulate the employment relationship in each province. Before
these decisions, the Canadian Constitution did not clearly state who regulated em -
ployment within the provinces. Some argued that the Provinces were responsible for
regulating any employment within their boundaries while others argued that it was
exclusively up to the Federal government. Still others argued that there was mixed
responsibility. In other words that some businesses or industries should be regulated
by the Federal government while others were the responsibility of the Provinces.
• In 1925, the highest Court of the day decided that employment laws were primarily
the responsibility of the Provinces. While the Canadian Constitution did not say this
outright, this responsibility came as part of the Province’s right to regulate “property
and civil rights”.
• The Court also found that the Federal government should only maintain responsibil -
ity for employment laws that relate to businesses or industries that were fundamental
to Canada’s existence. In other words businesses that were of “national importance”
such as transportation and communications.
• Industries that are federally regulated include:
• Navigation and shipping;
• Interprovincial communications and telephone companies;
• Interprovincial buses and railway companies;
• Airlines;
• Television and radio stations;
• Postal Services;
• Canadian Armed Forces;
• Departments/Agencies of the Federal Government;
• Federal Crown Corporations; and,
BLAW 3905 Reading Comp Answers 3

• Chartered Banks.
• Here are a few examples of specific companies that are Federally regulated
based on the categories mentioned above:
• Nav Canada – Aviation Navigation (now a Private Company);
• Telus, Bell Canada, Rogers;
• Greyhound, Canadian National Railway;
• Air Canada, Westjet, Harmony;
• CTV, Rogers Sportsnet, CKNW Radio, Z95.3, The Beat 94.5;
• Canada Post, Purolator (now a division of Canada Post);
• Canadian Army, Navy & Airforce;
• Revenue Canada, Immigration Canada;
• Canadian Broadcasting Corporation (CBC); and,
• Royal Bank, Scotiabank, TD.
NOTE - Credit unions are NOT banks and therefore are cur-
rently subject to provincial jurisdiction.

WEEK 2 - Understanding Common Law

Question 1
Describe the circumstances when an employee may be terminated without reasonable no -
tice, for having provided inaccurate information on a job application form or during an in -
terview.

• Employees may be terminated for inaccurate information given during the hiring
process if the misrepresentation goes to the root of their qualifications for the job.
For example, if they exaggerate their work experience, and that misstatement af -
fected the employer’s decision to hire in the first place, it may justify dismissal with-
out notice.
• Misstatements that do not necessarily affect the employee’s ability to perform the
job but that suggest an inherent lack of honesty may be the basis for summary dis -
missal where the position requires a high degree of trust. (See Cornell v. Rogers
Cable systems Inc.)
• The question whether it is fair for misstatements made during the hiring process to
justify immediate dismissal where the employee is performing well, may create con -
siderable debate among students. On the one hand, it is arguably a pretty drastic re -
action if the misrepresentation has had no negative effect on performance. For exam -
ple, where the job applicant pretended to have a particular degree but in fact did not
complete the last two or three courses, how can that relatively “minor” misstatement
negate the employee’s actual track record on the job. On the other hand, an employer
has the right to expect a high standard of integrity and arguably that misstatement
undermines the employer’s confidence in that individual’s candour and judgment.
BLAW 3905 Reading Comp Answers 4

Question 2
Employers have a basic obligation to ensure that material statements made during the re -
cruitment process are accurate. This obligation can make an employer liable for negligent
misrepresentations during the hiring process. In your own words, paraphrase and describe
the criteria necessary to establish a negligent misrepresentation.

The starting point for demonstrating negligent misrepresentations in the hiring process is
the decision in Queen v. Cognos. The Supreme Court of Canada established the following
elements that must be established:
• A relationship must exist between the two parties that causes the Employer to owe a
duty to take care of the hiree/candidate. This can come in the form of a negotiation
to hire someone into the company;
• Representations need to be made by the Employer that are untrue, inaccurate and or
misleading;
• The Employer making these representations must be found to have made them care-
lessly. In other words, the Employer knew or should have known the statements be -
ing made were inaccurate, untrue or misleading;
• The hiree/candidate must have reasonably relied on the negligent misrepresenta-
tions;
• The hiree/candidate’s reliance on those misrepresentations led to some kind of loss
or damage or harm to the candidate. In other words, the candidate left a job and is
not able to get the job back. The candidate spent money on a move for his or her
family and is left with those expenses etc.

Question 3
Provide a definition for the tort of inducement/allurement/enticement. Explain why
should an employer be concerned about aggressive recruiting tactics?

The tort of inducement/allurement/enticement is defined as a circumstance where an em -

ployee is lured from his or her position as a result of inflated promises. This tort requires
more than aggressive recruiting or advertising and typically involves some level of pursuit
of a candidate seeking to pull them away from gainful employment. As would be ex-
pected, the tort is triggered when the promises made do not materialize and the candidate
suffers some kind of damage/harm . Employers should be concerned about this tort because
it creates a likelihood that the employee may be entitled to a larger award for wrongful
dismissal damages should that employee be dismissed by the employer. It is no small
wonder that most recruiters seeking to cold-call candidates will use the phrase "do you
know anyone interested in the following role" as a way of maintaining some level of neu -
trality during their approach.

Question 4
BLAW 3905 Reading Comp Answers 5

Explain the circumstances where an employer may be liable for failing to adequately per -
form reference checks?

There are a few examples in Canada of "negligent hiring" whereby an employer is held re -
sponsible for the actions of employees hired without adequate due diligence/reference
checks. Cases such as Downey v 502377 explain that where an employer's failure to com-
plete a reference check results in some kind of predictable or foreseeable harm, then they
may be liable when that harm materializes. In Downey, the employer failed to perform
reference checks on a doorman who had a history of violent actions. This employee sub-
sequently badly beat a bar patron while on duty. The employer was found to have failed
to meet a basic standard of care because they had not completed reference checks that may
have revealed this violent past. While such cases are rare, the higher the risk of harm the
greater diligence an employer must show in the hiring process. For instance, when hiring
an employee in a position of trust (such as a daycare worker, teacher or care aid) or a po-
sition that requires an individual to use some level of force (such as a security guard),
greater care must be taken to assure the suitability of the successful candidate.

Question 5
Explain the steps you would use and the tests you might apply to distinguish between an
independent contractor and an employee. Provide at least two examples of an independent
contractor relationship.

As discussed in this Chapter, there are a number of different tests that can be used to dis -
tinguish between an independent contractor and an employee. It is prudent to consider
more than one test when determining whether an employment relationship is or will be
considered independent or employee . The more the person can be shown as “working for
themselves” and “independent from the organization” the more likely it is that they will be
found to be “independent”. Here is a brief summary of the tests commonly used by the
Courts:
• Control Test – Who controls the work that needs to be done. Questions like, who
decides how the work is done, when the work is done, who does the work are indica -
tive of the control test. If the individual has “control” over the tasks without over-
sight then they are more likely to be found independent.
• Risk Test – Who bears financial risk? Does the individual or the company? In other
words, if the individual does not get the task done or get it done on time are they go -
ing to loose money or not get paid at all? Another way to look at this is whether the
individual is risking profit or loss. Does the individual need to go out and secure
contracts/work from an organization in order to make money or is the person being
paid every two weeks regardless. Note that Commissioned sales people should be
considered differently and this test will not be all that helpful as they could be em -
ployees despite receiving some or all of their pay based on sales volumes.
BLAW 3905 Reading Comp Answers 6

• Organization Test – Is the individual rendering services to a company that are not
central to that company’s operation? Is the person providing services that would be
expected of an employee or a contractor? By way of the person’s work, is he or she
integrated into the daily operations of the business? Is the work of a temporary or
short term nature or long-term or permanent? This test is closely associated with the
Durability Test.
• Tools Test – Who owns the tools that are needed to get the job done? Are they
owned by the employer or the individual? If an individual provides his or her own
tools (whether laptop or tool belt and tools) then they are more likely to be found in -
dependent.
• Durability and Exclusivity Test – Is the person part of the day-to-day operations of
the organization. Do they participate in activities that an employee would be ex -
pected to participate such as staff meetings, performance reviews etc. Can the person
work for several organizations at once or just the one. Do they have to be at work ev -
ery day from specific hours etc. The more the relationship looks like an employee-
employer relationship the more likely it will be found to be one.

Two examples of independent contractor relationships are as follows:

(1) a cable TV/telephone company hires independent contractors to install their products
on an, as and when required basis. These installers drive their own vehicles, carry tools
that they purchase themselves, have the ability to work for other companies, can decide to
accept an offer of work or not, and only make money when there is work available (which
they in turn accept);

(2) a company hires a computer professional to support the installation of a new software
program. This computer professional and the company agree on the deliverables, time -
lines and customizations of the software. The professional is left to determine whether he
or she will sub-contract portions of the work, when the work is completed to meet the
timelines and only works at the company's offices when absolutely required.

Question 6
What are the risks associated with failing to adequately establish and maintain an indepen -
dent contractor relationship (i.e. an employer is found to have an employment relationship
with an individual)?

If an employer is found to have established an employment relationship when they thought

they had an independent contractor can be found liable for statutory deductions during the
period of employment as well as potential fines for failing to remit such deductions. In
addition, the employer may be liable for other benefits that were not provided to the indi -
vidual (including health, pension and vacation benefits). Finally, the employer may also be
responsible for some kind of damage aware for wrongful dismissal (something that an in -
dependent contractor would not be eligible for).
BLAW 3905 Reading Comp Answers 7

WEEK 3 - Employment Contract & Unionized Workplaces

Question 1
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. The specific terms of the agreement are clearly spelled out.
• It forms a record of the shared understanding of both parties that survives personnel
changes in the organization.
• Difficult issues can be addressed at this early stage in the employment relationship,
when the parties are well disposed toward one another.
• It enhances predictability. For example, if the parties address the amount of termina -
tion notice required, both the employer and employee know each other ’s obligations.
It thereby reduces the risk of litigation.
• There are some potential disadvantages to a written contract. From the employer ’s
point of view, the contract may end up limiting the employer’s ability to unilaterally
make changes to the terms of employment. For example, the job description may be
quite specific and thereby restrict the employer’s ability to make adjustments as
market conditions vary.
• From the employee’s point of view, having a written contract makes it more likely
that terms such as termination notice will be addressed. Such notice is typically less
generous than the reasonable notice period available to a dismissed employee under
the common law.

Question 2
If a dispute arises out of an oral employment contract, how does a court establish the
terms and conditions of the contract?

• Where the issue in dispute was not expressly addressed by the parties to the oral
contract, the court will “imply” what terms the parties likely would have agreed to,
had they put their minds to the issue. This obviously involves a considerable amount
of guesswork and leads to an unpredictable result.
• Where the issue in dispute was addressed by the parties to the oral contract, a court
will have to hear and weigh the evidence presented by each party to determine which
side has the strongest case. Again, there is a lack of predictability in the result.

Question 3
What are the main legal issues that can affect the enforceability of an employment con -
tract?
BLAW 3905 Reading Comp Answers 8

There are five main issues that can be used, usually by an employee, to challenge the va -
lidity of an employment contract. These are:
• 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 alleges that the contract is unreason-
able and one-sided because of his or her failure to understand what was being bar -
gained for or due to a lack of bargaining power.
• Obsolescence the employee argues that the contract no longer represents the rela-
tionship between the two parties because some feature (usually the job) has changed
so drastically 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, such as the notice of ter -
mination provisions in employment standards legislation, it will be unenforceable
and void.
• Use of ambiguous language where the wording of the contract is vague or could
bear more than one meaning, it will be interpreted by a court in a way that benefits
the party who did not draft it (see contra proferentem rule). This is usually the em-
ployee.

Question 4
What is the contra proferentem rule of interpretation? Does this rule seem fair to you?
Why or why not?
• The contra proferentem rule means that where the wording of an employment con -
tract is ambiguous, it will be interpreted by a court against the party who drafted it.
• This rule makes sense because the party who drafted the contract is usually the more
legally sophisticated party and has the greatest opportunity to create wording that is
clear and unambiguous

Question 5
Explain the difficulties that an employer may face with a fixed-term contract.

Fixed-term contracts are employment contracts that are stipulated to last for a definite pe -
riod of time or a particular task. As a result, the employer does not have to provide the
employee who is hired for a fixed term or task with reasonable notice of termination under
the common law.

One difficulty with fixed-term contracts is the administrative burden of monitoring the end
date of the term to ensure that the employee does not stay beyond the time or task set out
in the employment contract . If the employee does stay beyond that point, the fixed-term
contract becomes an indefinite-term contract and the employer may have to provide com -
mon law notice or pay in lieu of notice. To address this issue, fixed-term contracts should
BLAW 3905 Reading Comp Answers 9

generally contain a notice of termination provision . If a fixed-term contract does not have
a notice of termination provision, an employer will have to pay out the entirety of the term
in the event that it terminates the contract early. Note that the BC Employment Standards
Act automatically transforms an employee who has worked three months or more beyond
the end of their fixed term into an indefinite term employee.

Where an employer uses a series of rolling fixed-term contracts for what is, in substance,
an indefinite contract of employment, courts may look beyond the form of the contract and
find that it is an indefinite employment relationship that requires reasonable notice under
the law. In other words, an employer will not be allowed to avoid legal notice require -
ments by making the contract appear to be for a fixed-term when in actual fact it is an in -
definite hire . In these circumstances, the employer would be better off hiring the employee
on an indefinite basis and including a termination clause in the employment contract.

Question 6
Why are courts generally wary of restrictive covenant clauses?

Restrictive covenants, by their nature, restrict employees from certain activities after their
employment ends. Non-competition clauses, for example, prevent employees from work -
ing in a particular area for a fixed time . Courts are reluctant to enforce a provision that af-
fects the former employee’s ability to earn a living in his or her area of expertise. They
will only do so in circumstances where the employer proves that such a clause was neces -
sary to protect its legitimate business interests and that it went no further, in terms of time
and geographic scope, than was necessary to protect those interests.
Non-solicitation clauses restrict a former employee from soliciting the employer’s cus-
tomers, clients, or possibly employees. Courts are less wary of these clauses than they are
of non-competition clauses, but the employer must still prove that the clause is reasonable
in the circumstances.

Question 7
What contractual terms do you think an employee may have the most difficulty with?

All of the contractual terms can affect the parties’ respective rights and responsibilities
significantly and should be reviewed carefully. The terms that typically cause concern for
employees include:
• The termination clause because as long as it at least matches minimum statutory re -
quirements, it may set an enforceable termination notice period that is much less
generous than what a court would award as a reasonable notice period under the
common law.
• Restrictive covenants restrict an employee from competing with the former em -
ployer or from soliciting its customers, clients, or even employees after employment
BLAW 3905 Reading Comp Answers 10

ends so they may severely affect the employee’s ability to earn a living in these cir-
cumstances.
• Relocation provisions should address the parties’ true intentions concerning whether
the employee can be relocated by the employer.
• Ownership of intellectual property deals with which party will own inventions,
patents, copyright for products developed by the employee in the course of employ -
ment. As such, it should be reviewed carefully by an employee where relevant.
• Employees should review the job description carefully to ensure it matches his or
her expectations of what was agreed to.
• Probationary period — the employee will want to ensure that, if there is one, it is not
unduly long (3 to 6 months is typical).
• Vacation entitlement — as focus on the family becomes more and more prevalent,
generous vacation provisions have become “must-haves” for some employees.

Question 8
What are the chief components of the foundation of Canadian labour laws (the Wagner Act
Model)?

1. the right of employees to join or form a union;

2. a union has an exclusive right to bargain on behalf of its members and an employer
has an obligation to bargain with this union (known as exclusivity);
3. the collective agreement is an enforceable contract that dictates how disputes are re -
solved without resorting to work disruptions;
4. strikes and lockouts are regulated and unlawful during a valid collective agreement;
5. unions and employers must negotiate in good faith;
6. unfair labour practices are prohibited; and,
7. administrative bodies (labour boards) are to be used to regulate and enforce labour
laws.

Question 9
Outline the certification process in British Columbia.

1. At least 45% of a proposed group of employees must be shown to have supported

unionization (typically through signing membership cards to join the union);
2. Union then applies to the Labour Board who determines whether there is an appro -
priately defined bargaining unit;
3. If an appropriate bargaining unit has been proposed, the Labour Board then confirms
whether the minimum 45% threshold of support has been met;
4. If the threshold has been met, then a vote is is conducted. A vote is successful in
BC if a majority of employees within the defined bargaining unit vote in favour.

Question 10
BLAW 3905 Reading Comp Answers 11

Fundamentally, what is a collective agreement?

A collective agreement is an employment contract between a collection of employees and

an employer. The union is responsible for representing this collective, including the nego -
tiation of the collective agreement. The collective agreement is effectively a rule book
that governs many aspects of the employment relationship. Employees give up their indi-
vidual rights and pass these rights to their union whom represent them in all matters re -
lated to their employment.

Week 4 - Courts, Alternative Dispute Resolution (ADR), Administrative Law & Torts

Question 1
List and describe the principal advantages of alternative dispute resolution.

• Control: The parties involved remain in control of the problem and its solution
• Delay: The parties can determine the time and place of the process.
• Lost productivity: Managers can devote less time and resources to the dispute allow-
ing them to continue their work
• Costs: Legal and court costs are avoided there is no risk that a exorbitant or punitive
judgment will be the result
• Privacy: The matter does not become a public record. Only the immediate parties
need be involved
• Good will: Because both parties agree to the settlement process it is a less adversar -
ial process where concessions and compromise are encouraged
• International disputes: Jurisdictional rules are less of a problem since the parties can
set their own terms for resolving the matter. There is no need to turn to the courts of
either nation.
• Flexibility: The parties select the kinds of processes they use, customize it to their
needs and then set the time and place of the hearing and who needs to be involved.

Question 2
While a mediated settlement is not binding on the parties, it brings with it certain benefits.
What are they?
BLAW 3905 Reading Comp Answers 12

Because the parties have participated in the process and have come to a mutually accept -
able decision they are more likely to comply with the arrangement. If the mediation results
in a fair and reasonable solution the parties can sign a contract to that effect and be bound
by it. Ideally it is a win-win solution and a more positive relationship between the parties
will be the result. The matters have been kept private without negative publicity.

Question 3
What are the disadvantages of having matters resolved outside the courts?

One party may have the advantage of wealth and power over the other or withhold impor -
tant information. When there is this kind of disparity between the parties the courts will be
more effective in protecting the rights of the weaker party. Complex legal matters will
likely not be effectively dealt with in an ADR situation nor will a legal principal or prece -
dent be established. ADR methods do not necessarily consider human or fundamental
rights nor necessarily follow all of the rules of natural justice or evidence, and so a party
may be disadvantaged in that regard.

Question 4
What is meant by the term “ultra vires”?

Ultra view means “beyond the power of the decision maker”. In other words, the decision
maker is exercising power beyond the scope of the power they are given under their guid -
ing legislation (e.g. Human Rights Tribunal attempts to make a decision that is beyond the
power granted to them by the BC Human Rights Code).

Question 5
What is an administrative tribunal?

An administrative tribunal is a government agency or body with designated powers to

make decisions affecting the rights of others. This body will often hear complaints under
particular pieces of legislation. e.g. BC Human Rights Tribunal, BC Employment Stan -
dards Tribunal, BC Workers Compensation Tribunal, BC Labour Relations Board, the
Federal Employment Insurance Commission, the Canadian Human Rights Commission etc.

Question 6
What are the minimum standards required to ensure procedural fairness (also known as the
rules of natural justice)?

(a) A fair hearing: This involves appropriate notice to the parties involved, disclosure of
relevant information to ensure parties are prepared, and an opportunity to present and re -
BLAW 3905 Reading Comp Answers 13

fute evidence. (b) Decision is made by the person hearing the evidence; and, (c) decision
maker(s) must be impartial.

A decision maker (i.e. tribunal member) should always follow the rules of natural justice.
In the context of Employment Law, this means that any type of administrative tribunal in
which the rules of natural justice may not have been followed could lead to a challenge of
the decision made by way of an application for judicial review. Administrative tribunals
are considered quasi-courts, they have formality and rules but also allow for greater flexi -
bility than a typical court. For instance, a decision maker does not have to follow the very
strict rules of evidence that are required in a formal court setting.

Question 7
What is meant by the term “judicial review”?

Judicial review, just like the title suggests, means that the judiciary (i.e. the Courts) are
being asked to review the decision of an administrative tribunal. A judicial review is not
done in very many cases as the Courts will defer to the expertise of an administrative tri -
bunal in all but a few limited, exceptional cases (e.g. when the tribunal exceeds the powers
they are granted under a piece of legislation or when there is a concern that a breach of a
Constitutional/Charter right has occurred);

Question 8
Describe the torts of “false imprisonment”, and “Defamation”. When might these torts be
committed in the employment law context?

• “False imprisonment” - The classic definition of imprisonment is when a person is

confined in a specific place. A person can also be imprisoned when he or she is
physically restrained and subdued. When an authorized person arrests an individual
and insists, in such a way that the person thinks there is no option that he or she ac -
company the arresting person or stay in a particular location, that submission to au -
thority can qualify as imprisonment even though there is no physical confinement
and no physical restraint. This often occurs in the employment setting when employ -
ees are seeking to restrain and confine or “imprison” a shoplifter before they leave
the store or the immediate area.
• “Defamation” – Defamation is split into two different forms – Liable or Slander.
Libel, as a general rule, is written. Slander is spoken defamation. In either case,
defamation involves someone making false statements that are “published” (meaning
distributed to a wide audience) that results in some kind of harm (e.g. loss of reputa -
tion). It is easier to succeed in a libel action because libel is actionable per se (with -
out proof of special damages) whereas slander must be supported by some indication
of actual loss before an action can be successful.
BLAW 3905 Reading Comp Answers 14

◦ Some examples of where defamation can enter into the employment relation -
ship is when performance reviews are being completed or when an organiza -
tion makes false statements about an individual when they are being termi -
nated (i.e. making false allegations that harm the individual’s chances of get-
ting another job). More recently comments made on social media by employ-
ees about their employer or about their supervisor may lead to a claim of
defamation.

Question 9
Access www.canlii.org and find the Crocker v. Sundance case heard in the Supreme Court
of Canada on March 25-June 30 1988. Be sure to find the correct version of this case.
Summarize the following after reading this case:
• Summarize the facts of the case briefly (what happened)
• Outline the tort of negligence (4 components) as found in the case. Use your course
pack, study notes and readings to assist you
• For the first three components there are critical legal tests that establish these com -
ponents. Be sure to identify and list these components.
• The defendant raised three defenses in court. List and summarize these three de-
fenses.
By summarizing the 4 components and the legal tests, you should be able to apply this
framework to other fact patterns. Be sure your notes will assist you in applying your
knowledge.

Facts: Crocker participated in an event (inner tube racing) at a ski hill that carried signifi -
cant risk. He signed a waiver of liability form when he entered but was drunk at the time
and likely did not read the contents of the waiver. He was perpetually drunk over the
weekend but was witness to several accidents - including one where he was injured. He
ran into several employees, the manager and the owner of the resort along the way before
he went down the hill a final time. He fell off and became paralyzed. He sued the resort
and its owners etc. for negligence.
Tort of Negligence:
(1) A Duty of Care Must exist - This is determined by the Reasonable Foreeseability
Test = is it reasonably foreseeable to see that Sundance's actions would cause harm, injury
or loss to another? If yes, then a duty is owed.

(2) Breach of the Standard of Care - If a duty is owed, how far must one go to exercise
their duty to take care? The Reasonable Person Test is employed = What would a rea-
sonably prudent person have done given the same facts and circumstances? In this case,
Sundance could have prevented him from participating, made sure he knew the risks in -
volved, not given him another inner tube etc.
BLAW 3905 Reading Comp Answers 15

(3) Causation - Must connect the acts or omissions to the damage. We call this the causal
link. The test to determine causation is the "BUT FOR" test = But for my actions or my
failure to act the harm, injury or loss would not have occurred.

(4) Damages - the victim must suffer some kind of damage to himself or his property.
Here he became paralyzed etc.

Court's decision = Sundance 75 % liable, Crocker 25 % liable

Defences Raised: The resort attempted to defend themselves in court by claiming three
defences:
(1) Waiver as a Contract - Claimed that Crocker had signed a
absolving the resort of liability.
(2) Voluntary Assumption of Risk - Claimed that Crocker voluntarily assumed the risk of
the activity and therefore cannot now claim the resort is responsible.
(3) Contributory Negligence - That Crocker was partially to blame for his demise. He was
drunk and not making good decisions.
The court only accepted the third defence which was not an absolute defence. The em-
ployer (Sundance) was found liable for several million dollars worth of damages.

Week 5 - Human Rights Considerations during Employment

Question 1
Statutes often have mechanisms (internal aids) that assist with the interpretation of their
meaning (See Chap 1). List the internal interpretation mechanisms contained within the
BC Human Rights Code (the “Code”).

• The Definition section provides an explanation for key or important terms used
throughout the Code;
• The Table of Contents is also a useful method of understanding how the Code is laid
out as well as its key components. The most important components of most Acts
(AKA – Statutes, Acts, Legislation or Codes) are found at the beginning of the Act;
and,
• The Purpose section is the most useful internal aid as it provides a clear statement of
the “mischief” the Code is meant to address and the goals of the legislation.

Question 2
Must an Employer intend to discriminate in order to be found in violation of the Code?
Explain your answer.

No.
BLAW 3905 Reading Comp Answers 16

An Employer need not intend to discriminate. The case of O’Malley v. Sears established
that an Employer may discriminate unintentionally. This is codified in the Code in Section
2. It is important to remember that a lack of intention will not be viewed as an acceptable
excuse for discriminating. HR professionals will recall the concept of systemic discrimi-
nation for instance where an employer may have processes that inadvertently or uninten -
tionally treat individuals differently. This is a prime example of where discrimination can
occur without intent.

Question 3
What Sections of the Code speak specifically to an individual’s protection against discrim-
ination and inequality during employment? What do these sections protect? Explain your
answers.

Section 7 – Discriminatory publications (this is a more generic provision that is not specif -
ically tied to employment - Section 11 will apply more often than Section 7)
Section 8 – Speaks more generally to the public access to facilities and services. This
again is a more generic provision that does not speak specifically to employment. Section
8 MAY apply for instance in the case of someone coming to access a building for an inter -
view.
Section 11 (Employment Advertising) – Protects individuals against discriminatory job
postings, publications or advertising related to employment or prospective employment;
Section 12 (Wages) – Protects against unequal pay based on sex.
Section 13 (Employment) – This is the primary section of the Code providing protection
during employment from hiring to termination. This section covers Employment Agencies
as well. This section also outlines some of the exceptions where discrimination may be al -
lowed (see BFOR).
Section 14 (Unions and Associations) – Protects against discrimination by Unions and as-
sociations both before and during employment.
Section 43 – protection against reprisals for raising concerns/filing a complaint. This sec-
tion is known as an anti-reprisal clause and most employment statutes will have something
similar.

Question 4
What are the grounds upon which a complaint of discrimination can be launched (known
as the “prohibited grounds”)?

Race
Colour
Ancestry
Place of Origin
Political Belief
Marital Status
BLAW 3905 Reading Comp Answers 17

Family Status
Religion
Physical or Mental Disability
Sex
Sexual Orientation
Age
Criminal Conviction (Unrelated to the employment); AND,
Gender identity or expression (Note added in 2017)
Indigenous identity (Note added November 2021)

Question 5
Explain whether you think an Employer can avoid a claim for discrimination during the
hiring process by contracting with an Employment Agency to carry out the hiring? Be sure
to explain your answer.

Rarely. An employment agency is working on behalf of the Employer and receives its in -
structions from that Employer. As a result, the Employer is usually found liable/responsi -
ble for the discriminatory actions of the employment agency. To avoid this liability, the
Employer must ensure that its instructions are clear and are not discriminatory. In addi -
tion, the Employer should ensure that the contract with the agency clearly indicates that it
will not tolerate inappropriate or discriminatory practices. An indemnity clause may also
be used here to protect the Employer.
An indemnity clause states that if the agency’s actions result in the Employer being found
liable for discrimination, then the agency will reimburse the Employer for its out of pocket
expenses.

Question 6
The Code allows discrimination to take place in certain specific circumstances. Locate and
explain these exceptions.

• Age – The Code defines Age as “19 years or more and less than 65 years”. The Code
therefore allows Employers to discriminate before 19 (age of majority) and after 64
(retirement age). This definition also allows for mandatory retirement schemes to
exist in the province (though this is likely to change).
• Age related to seniority schemes in employment (S. 13(3)(a));
• Marital status, physical or mental disability, sex, age to operate a pension or em -
ployee insurance program (S. 13(3)(b));
• A Bonafide Occupational Requirement (BFOR) noted in S. 13(4) and also defined in
the common law. This is the primary exception to the "tho shall not discriminate
rule; and,
• Promotion of interests of an identifiable group and special programs (S. 41-42).
BLAW 3905 Reading Comp Answers 18

Question 7
What protection does the Code provide to those Employees who file a complaint against
their Employer?

Section 43 protects employees against reprisals for exercising their rights under the Code.
This is a critical section as few employees would be willing to run the risk of making their
concerns known if they were fearful of punishment for doing so.

Question 8
Section 13 (and the common law) defines a bona fide occupational requirement (BFOR).
Explain how a bona fide occupational requirement is established. Include the 3-part test
set out by the Supreme Court of Canada.

BFOR Test (Meiorin Case & Modified by the Hydro Quebec Case)
To successfully defend a rule or standard or practice that is discriminatory an employer
MUST:
1. show rational connection between reason or purpose for standard/policy/practice and
the requirements of the job;
2. show the standard/policy/practice was adopted in honest and good faith belief that it
was necessary for the performance of the job;
3. show that standard/policy/practice was reasonably necessary to complete a legiti -
mate work purpose AND...
◦ to show this was necessary, the employer must show that it is impossible to
accommodate the employee without imposing undue hardship on the em -
ployer.

Question 9
What is the duty to accommodate and when does it arise?

When does the duty arise? Whenever a circumstances where an individual may be treated
unfairly/unequally on the basis of a prohibited ground. In such cases, an employer must
accommodate the individuals as far as reasonably possible to avoid this unfair/unequal
treatment. Efforts must be made to accommodate (unless a valid exception exists) up to
the point of undue hardship (See next question).

Question 10
Explain the concept of “undue hardship” in your own words.

Undue hardship represents a very significant burden on an Employer when attempting to

accommodate an employee. In fact, it is the point at which an Employer cannot reasonably
do anything more without significant impact. The impact could be significant costs, a
health or safety risk to the accommodated employee (or others), It can also connote a dis -
BLAW 3905 Reading Comp Answers 19

ruption to the organization, something the court has called “more than a minor inconve-
nience”. When an Employer can prove it has reached the point of undue hardship it will no
longer be held to an obligation to accommodate an individual. The point of undue hard-
ship depends in large part on the size and resources of the organization.

Question 11
Where does a pregnant woman find her protection under the BC Code? Under which pro -
hibited ground would she be protected?

Under "Sex" (gender).

Question 12
What Sections of the Federal Code speak specifically to the protections against discrimi -
nation during employment? Describe the protection briefly in one or two words.

• Sec 7 = Employment – to refuse or differentiate

• Sec 8 = Employment Applications – expressly prohibits or limits
• Sec 9 = Employee Associations/Organizations
• Sec 10 = Discriminatory practices or policies depriving group or individual of em -
ployment opportunities
• Sec 11 = Equality in wages
• Sec 12 = Publishing discriminatory content
• Sec 14 = Harassment
• Sec 15-16 = Exceptions to principle "tho shall not discriminate"
• Sec 25 = Employment related definitions

Week 6 - Minimum Standards (Employment Standards Act) & Occupational Health

and Safety

Question 1
INSTRUCTIONS - USE a copy of the BC Employment Standards Act to answer the fol -
lowing questions. The ESA can be accessed at www.bclaws.ca
The Act prohibits false representations during the hiring process. Identify the Section and
the four areas specifically outlined by this Section.

ANSWER = No false representations

Specifically identifies that Er’s are not permitted to induce or persuade someone to be-
come an EE by misrepresenting:
1. the availability of the position;
2. the type of work;
3. the wages; or,
BLAW 3905 Reading Comp Answers 20

4. the conditions of employment.

NOTES –
• This section is meant to apply ONLY in the context of pre-employment/hiring situa -
tions. It is NOT meant to be an overall statement on employment misrepresenta-
tions;
• Job advertisements are NOT covered under this section. ER can therefore offer a
different job than advertised without violating this section of the Act

Question 2
False representations during the hiring process were covered in Chapter 3 in the context of
a common law decision. Name the case and briefly outline the facts.

Queen v. Cognos
This case involved a Calgary accountant who accepted a job with Cognos in Ottawa. Dur -
ing the interview process Mr. Queen was not made aware that the job was subject to fund -
ing. When the funding fell through shortly after he had moved to Ottawa, Mr. Queen was
terminated. The essence of this case comes down to the fact that Mr. Queen relied to his
detriment on negligent misrepresentations (i.e. a failure to advise of the uncertainty of the
position he was accepting). As a result of this reliance, he suffered loss/damages in the
form of giving up his job in Calgary and moving his family across the country.

Question 3
Section 9 sets out the rules for hiring children. Briefly outline these rules as they appear in
the Act.

• Normal age to hire children is 15 yrs old.

• Children under 15 can be hired with written consent from parent/guardian
◦ Generally cannot hire below 12 but special permission from Director of ESB
◦ Exceptions generally as a result of movie and TV industry therefore special
rules exist for them.

Question 4
In Part 2, the Act places certain limits and restrictions on recruitment agencies (i.e. the
employer’s agent). What are these rules?
Sec. 10 – prohibits ER from charging or receiving $ to obtain employment for the person
seeking employment
Sec. 11 – prohibits agency from paying another person to obtain employment for someone
else.

Question 5
Wages, Special Clothing and Records (ESA, Part 3)
BLAW 3905 Reading Comp Answers 21

What does the Act say about minimum wages? Where are the monetary amounts of the
minimum wages found?

• Minimum wage amounts are not found in the Act as they change to frequently. In -
stead they are placed in the Regulations that can be amended much more easily.
• Minimum wage has been an active conversation in recent years by the BC Provincial
Government. The following is the schedule of wage increases:
◦ June 1, 2018 – $12.65 per hour;
◦ June 1, 2019 – $13.85 per hour;
◦ June 1, 2020 – $14.60 per hour;
◦ June 1, 2021 – $15.20 per hour.

Question 6
How does the Act define “paydays”? When must employees be paid? What MUST an Em-
ployer pay on a payday?
Ees must be paid at least twice a month and within eight days of the end of the pay period.
a “pay period” is defined as a period of 16 consecutive days of employment. An Ee must
be paid all wages earned during that period (except overtime wages credited to a time bank
or vacation pay).
Study Note – WRITTEN PAY STATEMENTS - Section 27 of the Act requires Employers
to give their Employees a written statement of their wages for each pay period. EXCEP -
TION = If the wage statement would be the same as the statement given during the previ -
ous pay period, the Employer is not required to provide another statement until a change
occurs.

Question 7
What obligations does an Employer have with regard to wages owing at the time of an
Employee’s dismissal, resignation and retirement?
• All wages owing to the Employee Must be paid within 48 hours of the termination.
• Resign or retire = 6 days.
Study Note – DEDUCTIONS – Unless directed by a Provincial or Federal Act or govern-
ment body (I.E. – Income Tax, CPP, EI, Court Order, Enforcement of Family Maintenance
etc.), the Employer cannot withhold or deduct from an Employee’s wages.
If an OVERPAYMENT occurs, an Employer CAN recover these wages because the Em -
ployee was NEVER entitled to these wages if there is clear proof an overpayment was ac -
cidentally made.
Employees DO have the right to ASSIGN part of their wages if they do so in writing for a
legitimate purpose (I.E – Union dues, charitable deductions, extended health premiums
and pension plans [including RRSPs])
Question 8
Briefly define what “special clothing” means under the Act. Briefly explain the BASIC
rules an Employer must follow in relation to “special clothing” in Part 3 of the Act.
BLAW 3905 Reading Comp Answers 22

Er’s that require EE’s to wear special clothing must provide that clothing and clean and
maintain that clothing in a good state of repair.
Er’s CAN enter into an agreement with an employee to clean and maintain their own
clothing. An Er should ensure that they keep any such agreement on file for at least two
years.

Question 9
Hours of Work and Overtime (ESA, Part 4)
Explain the Employer’s meal break obligations under Part 4 of the Act. Is there a require-
ment to provide “coffee breaks” under the Act?

• Section 32 – ER Must provide EE with 30 min meal break at least once every 5 hrs.
• EE not entitled to pay during this time unless EE expected to work or be available to
work during break
• EE entitled to meal break if meal during travel that IS PART OF job.
• EE NOT entitled if chose to remain on worksite or if chose to interrupt break to as -
sist customers without being directed too.
• Meal breaks can be scheduled at the convenience of the operation
• NOTE – IF ER requires EE to wear a pager during break then MUST pay for time.
• No requirement to provide coffee breaks under the Act.

Question 10
Part 4 sets out the minimum pay requirements for Employees who are called in to work
(Call in Pay Identify the minimum number of hours an Employee must be paid for in the
following scenarios:
a. Min of 2 hours of work at regular wage. Minimum call in period for a regular length
shift.
b. Paid the hours worked (3hrs) as beyond the minimum of 2 hrs but not scheduled for
a long shift (over 8 hours).
c. Min of 4 hours of work at regular pay. Minimum call in period for long shifts.
Study Note – MINIMUM PAY WHEN SCHEDULED FOR MORE THAN EIGHT
HOURS – IF the work is suspended for reasons completely beyond the Employer’s con-
trol, including unsuitable weather conditions, the Employee is entitled only to two hours
of regular wages or hours worked (whichever is greater). This exception is meant to apply
to unique circumstances such as “Acts of God”.

Question 11
BLAW 3905 Reading Comp Answers 23

In order to avoid paying overtime the Act stipulates the arrangement of work hours with
maximum hours of work and minimum hours of rest. What are the:

a. Section 35 (40 hrs per week; or 8 hrs per day)

b. Section 36 = 32 consecutive hours
c. Section 36 = 8 consecutive hours
Study Note – AVERAGING AGREEMENTS – Employers may enter into an agreement
with its employees to average out the hours of work over a 1,2,3 or 4 week period. As a
result, some weekly schedules under an averaging agreement exceed the minimum and
maximum hours discussed above, but the average hours must still conform to the Act ’s re-
quirements as set out in Section 37.

Question 12
How does the Act describe the term “excessive hours”? Why is this an important addition
to the Act?

Assumed Er has control over hours of work. Defined as detrimental to EE ’s health or

safety. This has been added to the Act to provide additional protection to workers against
abuse by their employers.

Question 13
When not subject to an averaging agreement, what are the pay rates for daily and weekly
overtime under the Act?
• Time over 8 hrs = 1.5 X regular rate
• Time over 12 hrs = 2 X regular rate
• Time over 40 hrs per week = 1.5 X regular rate (but only count regular hrs up to
eigh hrs per day). Means weekly overtime paid only when working MORE THAN 5
days in a week.
Study Note – BANKING OVERTIME – An Employee may request to have their overtime
placed in a time bank instead of being immediately paid out immediately. These banks
must either be paid out or taken as time off within six months of the overtime.
Study Note – EXCLUSIONS FROM HOURS OF WORK – The Act excludes a number of
individuals from these provisions pertaining to Hours of Work. These exclusions include,
Unionized Employees with Hours of Work provisions in the Collective Agreement, Man -
agers, Executives, Student nurses, fishing or hunting guides, Fish Camp Workers etc.
Study Note – SPECIAL PROVISIONS FOR SPECIAL JOBS – Certain occupations have
separate Hours of Work Provisions specified in the Act’s Regulations. These include:
Farm workers, livestock brand inspectors, resident caretakers, taxi drivers, logging truck
drivers, fishers, truck drivers, newspaper carriers, oil and gas workers, high tech profes -
sionals, aquaculture workers, mining, commissioned sales workers and bus operators to
name a few.
BLAW 3905 Reading Comp Answers 24

Question 14
Stat Holidays (ESA, Part 5)
What are the statutory holidays recognized under the Act and what must an Employee do
to qualify for either (a) a day off with pay; (b) an alternative day off with pay; or, (c) pre -
mium pay if they work the statutory holiday?
• New Year’s, Family Day, Good Friday, Victoria Day, Canada Day, BC Day, Labour
Day, Thanksgiving, Remembrance Day, Christmas Day (Total of 10 Days in BC)
• Worked or earned wages for 15 of the last 30 days prior to the holiday.
NOTE – Remembrance Day IS NOT a stat in every province. Also, Easter Monday and
Boxing Day are NOT protected stats in BC. Significant discussion has also been initiated
across Canada as to whether September 30th should be observed as a stat as part of efforts
to recognize the importance of Truth and Reconciliation. As of the spring of 2022, the BC
Provincial Government have not adopted September 30th.

Question 15
Leaves and Jury Duty (ESA, Part 6)
Name the basic types of leave (including jury duty) granted under the Act and describe
VERY BRIEFLY what an Employee is entitled too (Describe only the primary cases, not
the exceptions. DO NOT describe all of the procedure).

Sick Leave – 5 days of paid sick leave per calendar year, but no carry over of unused
days. These days are applied equally for part-time, temporary or casual employees. [New
as of January 2022]
Pregnancy/Maternity Leave – Up to 17 consecutive weeks unpaid. Up to 13 weeks be-
fore and no later than six weeks after.
Parental - For mom up to 61 weeks unpaid beginning immediately after pregnancy leave
(this reflects the relatively new standard of allowing up to 18 months away from work).
Family responsibility – up to 5 days unpaid to deal with health concerns or education of
child or immediate family member.
Bereavement leave – up to 3 days unpaid at time of death. It must be an immediate fam-
ily member who passed away.
Jury Duty – allow unpaid leave for the period of the duty (this could be a lengthy period
of time, e.g. The Robert Pickton Trial)
Compassionate Care - Up to 27 weeks in a 52 week period to support a gravely ill family
member.
Critical Illness or Injury Leave - up 36 weeks to support for someone under age 19 and
16 weeks for those older than 19 years.
Reservists' Leave - In support of individuals whom are part of the Canadian Armed
Forces Reserve whom are deployed for training or active duty.
Additional leave categories exist for the disappearance or death of a child, and matters re -
lating to escaping domestic or sexual violence.
BLAW 3905 Reading Comp Answers 25

There is also leave related to COVID-19 including to care for someone or to be vacci -
nated, though these may be repealed post-pandemic.
Question 16
In relation to the above-mentioned leaves, what must an Employer NOT do when leave is
requested? What MUST they do when the leave ends?
MUST NOT terminate the employee. MUST return the employee to the same or compara-
ble position they held when they began their leave.
Study Note – EMPLOYMENT CONTINUOUS WHILE ON LEAVE– The Act states that
an Employee who is on leave or jury duty will be treated as if his or her employment was
continuous during the leave for the purposes of calculating vacation entitlements and enti -
tlement to notice upon termination. This also means that employment is not considered to
be broken for the purposes of medical and pension plans. Finally, any wage increases that
the Employee would have been entitled too had they been working and not on leave should
be paid starting from the first day he or she returns to work.
Question 17
Annual Vacation (ESA, Part 7)
In regards to annual vacation, an Employer must give an Employee at least:
a. 2 weeks of annual vacation
b. 3 weeks of annual vacation
Study Note – ANNUAL VACATION – Is exclusive of statutory holidays and must be
taken within 12 months after completing the year of employment when the vacation was
earned.
Study Note –VACATION PAY – Must be paid after 5 calendar days of employment at a
rate of 4% total yearly wages until the Employee reaches 5 years of employment whereby
the rate increases to 6%. Vacation pay must be paid to Employees at least 7 days before
their vacation or on scheduled paydays.

Question 18
Termination of Employment (ESA, Part 8)
What is the minimum notice period in the following situations according to the Act …

After 3 consecutive months of employment? 1 weeks.

After 12 consecutive months of employment? 2 weeks.

After 2 consecutive years of employment? 2 weeks.

BLAW 3905 Reading Comp Answers 26

After 3 consecutive years of employment? 3 weeks.

After 4 consecutive years of employment? 4 weeks.

After 5 consecutive years of employment? 5 weeks.

After 8 consecutive years of employment? 8 weeks.

After 9 consecutive years of employment? 8 weeks.

NOTE – the ESA provides the same amount of notice after 12 months as it does after 2
years (2 weeks). Some students find this to be confusing so please take note of this!
ALSO keep in mind that these severance provisions are MINIMUM provisions. They typ-
ically apply for situations involving short-term employment or as a way of "regulating"
termination clauses within employment agreements by setting a minimum level of sever -
ance.
Question 19
Is Common Law Notice the same as Statutory Notice (i.e. ESA minimum notice periods
specified above)? Explain why or why not as best you can.
No. Common Law Notice is not the same as Statutory Notice. The ESA only evaluates
one factor, the amount of time someone has worked with a particular employer. The Com-
mon Law looks at a multitude of factors. In addition, the Common Law precedents have
awarded significantly more notice to a terminated employee than the ESA in all but the
rarest of cases (e.g. usually when an employee is terminated after only just beginning with
the company). Note also that the ESA cannot award more than 8 weeks notice even if an
employee has worked for an organization for an extremely long period of time.
Study Note –RESIGNATION – An Employee who quits or voluntarily resigns is NOT en-
titled to notice.
Study Note –WORKING NOTICE OR TERMINATION PAID (PAY IN LIEU OF NO-
TICE)– The Act allows Employers to provide either working notice or pay in lieu of no -
tice. The time frames for both are the same.
Study Note –GROUP TERMINATIONS – Where 50 or more Employees are to be termi-
nated within a 2 month period additional information and notice must be provided to the
affected Employees.
Question 20
We explored fixed term (or Definite Term) contracts earlier in the course and the implica -
tions about failing to end or renew such a contract upon its expiry. Explain how the Act
addresses fixed or definite term contracts in Part 8.
Section 65. NOTE that if an employee works 3 months beyond the definite term, they are
deemed to be a continuous term employee. This means that if this employee is terminated,
then they will be able to claim the rights under the Employment Standards Act and the
BLAW 3905 Reading Comp Answers 27

Common Law for notice or pay in lieu of notice from the beginning of their employment
with the employer.
This section erases any doubt that might arise when an employee works beyond a fixed
term without a new arrangement being made. The moment an employee works beyond a
fixed term they enter into a potential gray area. Their stated contract has now expired, but
they are nonetheless still working. The longer they work without a new arrangement/con-
tract/clarification the more likely it is that a Court will consider them an indefinite term
employee. The Employment Standards Act comes in to say that this gray area ends at the
three month mark when the employee AUTOMATICALLY becomes an indefinite term
employee.
Study Note –Laid Off Employees – A laid off Employee cannot claim termination pay un-
til the layoff exceeds 13 weeks in a 20 week period. Where 50 or more Employees are to
be terminated within a 2 month period additional information and notice must be provided
to the affected Employees.

Question 21
Can an Employer provide working notice to an Employee who is away from the workplace
on valid leave (including vacation) or medical leave?

Because the employee is not working they cannot pay attempt to claim that the individual
is being given “working notice”. Working notice means that the contract of employment is
being ended by giving notice to the employee who is expected to continue working
through the period of notice. An employer could feasibly provide pay in lieu of notice to
someone on a valid leave but this could result in a Human Rights Complaint. The Tribunal
will seek to determine whether you have terminated based on a prohibited ground (e.g.
disability) and may consider your obligations to accommodate that individual. Even if
such a termination were undertaken in good faith, the perception the termination may lead
to a successful complaint before the Human Rights Tribunal. Exercising extreme caution
when considering a termination during a valid leave is essential!