Employment & Labour Law || with 100% Error-free
Solutions.
What does employment law consist of? correct answers - Recruitment, selection, & hiring.
- Managing the employment relationship.
The end of the relationship.
What is the labour law regime in Ontario? correct answers - Certification & unfair labour
practices.
- Collective bargaining & industrial disputes.
What do they apply to: employment vs. labour law? correct answers Employment Law:
- non-unionized workplaces
- "employees" but not independent contractors.
Labour Law:
- Unionized workplaces.
- to those employees seeking certification as a collective bargaining unit. (union).
What is the constitution made up of? correct answers Statutes but it is the "supreme law of the
land" meaning that it governs all other laws (see Constitution Act, 1982, s. 52). The law that can
strike down other laws.
What did the constitution establish? correct answers Legal and political framework for Canada.
What does the constitution determine? correct answers Whether provincial or federal
government has power in a certain area (see Constitution Act, 1987, ss. 91 to 95).
What is the constitution also known as? correct answers The Charter of Rights and Freedoms.
What are statutes? correct answers Laws that are written down and approved by the government.
- Also called "legislation" or "acts".
- Underneath statutes are more detailed and prescriptive documents called "regulations".
Who interprets and applies statutes and regulations? correct answers Administrative tribunals
and courts.
Who is the highest authority of decision-making bodies in Canada? correct answers The
Supreme Court of Canada is the highest authority, then provincial appeal courts, then first level
courts.
Do administrative tribunals have specific jurisdiction to make decisions within statutes? correct
answers Yes, unless they go beyond their jurisdiction or deny natural justice.
What is common law? correct answers The law that arises from judge made decisions in areas
where statutes don't exist or where they are silent.
,Key concepts of common law? correct answers Precedence, binding, stare decisus (stand by
things already decided), persuasive, distinguishable, hierarchy courts, recency, jurisdiction.
2 branches of common law? correct answers 1. tort
2. contract
Why is contract law important? correct answers Contract law serves as your protection in every
legal agreement you make in life. Contract law makes these agreements "enforceable", which
usually means that it gives the party the power to compensate and obtain money damages caused
by the other party due to a breach of contract.
Why is tort law important? correct answers The main aim of tort law is to provide a system that
holds people accountable for the damages they cause while discouraging others from doing the
same. ... The tort system also helps limit the government's role in the process, allowing it to take
the lead in criminal cases.
When dealing with statutes? correct answers 1. Think about them as answers to problems that
society wanted to solve - they were passed for a reason.
2. Read carefully and always go back and read the section again.
3. Make sure you have the current version.
4. Don't forget about the regulations.
5. Always check your interpretation against the underlying purpose of the statute - is it consistent
with that purpose?
Key Ontario statutes correct answers - Employment Standards Act, 2000.
- Human Rights Code (Ontario).
- Labour Relations Act, 1995.
- Occupational Health and Safety Act, 1997.
- Pay Equity Act.
Accessibility for Ontarians with Disabilities Act, 2005.
Who is an employee? correct answers - Employment laws only apply to employees.
- Common law implied contractual terms only apply to employees.
Different categories of employees? correct answers 1. Indefinite term (full time or part time).
2. Limited or defined term (also often called contract employees).
- Contract employees are not independent contractors.
Why does it matter who a employee is? correct answers - Statutory and regulatory protections for
employees. Ex. Employment Standards Act, OHSA, Pay Equity Act, Canada Pension Plan.
- Income Tax implications.
- Implied contractual terms in contracts of employment.
- Vicarious liability: employer is liable for torts committed by employees during the course of
employment (but not for independent contractors).
- Penalties for being wrong.
,The Classic "Four Fold" test: Montreal v. Montreal Locomotive Works Limited correct answers
Consider 4 dimensions of the relationship:
1. Control: Who controls when, where and how the work is done?
2. Tools: Does the worker use his/her own tools, supplies, or equipment?
3. Chance of Profit: Does the worker have a chance of profit?
4. Risk of Loss: Does the worker run the risk of loss?
Today's Commonly Used Tests? correct answers 1. Control: Who controls when, where and how
the work is done?
2. Tools: Does the worker use his/her own tools, supplies, or equipment?
3. Risk: Who has the chance of profit & who carries the risk of loss.
4. Durability & Exclusivity: Has the worker worked for the payer for a lengthy period of time
and does the worker have other clients?
5. Integration: How integrated is the worker into the payer's overall business and commercial
activities?
How do you apply the "four fold" test? correct answers - Determination is very fact driven. No
single factor is determinative. Courts look for the "big picture".
- Courts/decision-makers tend to apply the test in a way that is most consistent with the purpose
of the statute at issue. So statutes designed to protect workers tend to be interpreted more broadly
than, say, the Income Tax Act.
- It is possible for a worker to be an "employee" under one statute but an independent contractor
under a different statutory regime.
Managing risk in "four fold" test? correct answers - The test is based on the factual nature of the
parties' relationship...not the parties' intentions.
- Tailor contractual provisions with a view to meeting the applicable statutory test rather than
just saying "worker is not an employee".
- Check all applicable statutes and regulations.
Phase 1 of Employment Relationship? correct answers - Advertisement & Recruitment.
- Selection.
- Hiring Decisions.
- The Employment Contract.
Legal risks in phase 1 of the employment relationship? correct answers - Compliance with
Ontario Human Rights Code.
- Avoiding torts related to hiring.
• Interference with contractual relations ("poaching" someone else's employees).
• Negligence in hiring.
• Negligent misrepresentation.
- Contractual implications of misrepresentation, luring, and retraction of job offers.
The Hard Truth correct answers - We are all at least a little bit biased.
- We all see race, gender, ability, ethnicity, and so forth.
, What if Businesses Embrace Diversity and Inclusion? correct answers - High employee
retention.
- Increased job satisfaction and knowledge sharing.
- Reduced workplace harassment.
- Innovation happens.
- Reduced groupthink.
- Enhanced decision-making.
- Improved team performance.
- Enhanced reputation.
- Less fraud and better business practices in companies with more women on boards.
What Are Our Canadian Values? correct answers We seek to recognize, affirm, and protect that
"inherent dignity and the equal and inalienable rights of all members of the human family" * and
to create a "climate of understanding and mutual respect".
Human Rights Legislation correct answers All the provinces and the federal government have
enacted human rights legislation. These codes are in addition to the Charter of Rights and
Freedoms.
What does the Ontario human rights code consist of? correct answers - Ontario Human Rights
Legal Support Centre: provides advice.
- Ontario Human Rights Commission: research, education & advocacy.
- Ontario Human Rights Tribunal: where HR complaints are filed and adjudicated.
What does the human rights legislation apply to? correct answers Public & private sectors and to
individuals.
Quasi-constitutional correct answers OHRC trumps any Ontario law or regulation that is
inconsistent with the Code unless the conflicting legislation specifically states that it overrides
the Code.
Can you contract out of the Code? correct answers NO
5. (1) OHRC correct answers Every person has a right to equal treatment with respect to
employment without discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record
of offences, marital status, family status or disability.
How do you apply the Code? correct answers - No discrimination.
- Prevent harassment.
- Accommodate to point of undue hardship.
Covers the full spectrum of the employment relationship.
Discrimination in OHRC? correct answers - Not defined in OHRC.
- Does not require intent: impact is enough.
