EMPR exam Flashcards
1
Q
3 legal regimes in Canada
A
1) Common law
2) Regulatory standards
3) Collective bargaining
2
Q
What are the two areas comprimised in the Common Law Regime?
A
law of contracts and law of torts
3
Q
What is the Common Law Regime
A
- Key actors are employer and individual employees
- Engage in the rule-making process of negotiation and their agreements produce the main output of the regime
- When disputes arise about contracts they are sometimes resolved through civil litigation
- Workplace norms produced by this regime
4
Q
What is Common Law?
A
A system of judge-made rules originating in England and inherited by Canada → uses a precedent-based approach to case law
5
Q
What is a contract?
A
A legally binding agreement in which 2 or more parties make promises to provide benefits to one another
6
Q
What is an employment contract?
A
A contract between an employer and an individual employee that defines the conditions under which the employee will provide labour to the employer in exchange for monetary and other benefits
*may be written or oral
7
Q
What is a Tort?
A
A type of wrongful act done by one person to another (or another’s property) that judges have recognized as legally actionable
*harm caused doesn’t directly violate a contract or government statute
8
Q
What is the Regulatory Regime?
A
Government acts that put floors and ceilings on the rights of workers.
They can act as protections for workers in cases where the common law would not provide protection.
Ex: Floors: Minimum wage
Ceilings: numbers of hours worked in a specific time frame
9
Q
Freedom of Contract
A
Argument allowing employees and employers to “negotiate” the conditions of employment leads to the fairest and most efficient outcomes for the parties, the economy, and society as a whole (neoclassicist perspective)
10
Q
Breach of contract
A
Occurs when a party to a contract violates one or more terms of a legally binding contract
11
Q
remedy
A
Means by which a court or tribunal enforces its decision (punishment)
12
Q
Binding precedent
A
An earlier decision by a court of higher ranking dealing with the same legal issue in a case that comes before a lower court judge
13
Q
statute
A
A law or legislation produced by a government that includes rules that regulate the conduct of business and people (ex. Employment Standards Act 2000)
14
Q
2 remedies for tort violation
A
1) Monetary damages
2) Injunction
15
Q
Injunction
A
A legal order issued by a judge prohibiting a person from engaging in a particular course of action
16
Q
3 levels of Canadian Courts
A
1) Supreme Court of Canada
2) Courts of Appeal
3) Courts of First Instance
17
Q
Inferior Court of First Instance in Ontario
A
Ontario Court of Justice
Appointed by Province
18
Q
Superior Court of First Instance in Ontario
A
Superior Court of Justice
Appointed by federal government
19
Q
regulations
A
Government-made rules introduced as supplement to, and pursuant to authority created in a statute
20
Q
Protective standards regulation
A
Government regulation designed primarily to protect employees by imposing mandatory standards, such as minimum contract requirements and safety rules
21
Q
Expert administrative tribunals
A
Decision-making bodies created by a government statute and given responsibility for interpreting and enforcing one or more statutes and any regulations pursuant to that statute
22
Q
Judicial review
A
The process through which a decision of an expert administrative tribunal is appealed to a court on the basis that the tribunal exceeded its authority (or jurisdiction) as defined in the statute that created it or that the tribunal’s decision was wrong
23
Q
Collective bargaining regime
A
2 distinct streams or types of rule-making processes that produce a range of legal rules (outputs):
1) The legislative process through which governments enact collective bargaining legislation that regulates unionization, collective bargaining, and collective agreement administration
2) The collective bargaining process, through which unions and employers develop rules through a mix of collective bargaining, sometimes accompanied by industrial conflict, collective agreement administration and labour arbitration and occasionally civil litigation, involving mostly tort law
24
Q
strike
A
In canada strikes are usually defined to both (1) a collective refusal by employees to perform work, and (2) a deliberate collective slowdown by workers designed to restrict the output of an employer (commonly known as work to rule)
25
Collective bargaining regime comprises 3 categories of legal rules
1) Government-made statutory rules found in labour relations statutes regulating the formation and administration of unions, collective bargaining, and industrial conflict, enforced by expert administrative tribunals called labour relations boards
2)Collectively bargained rules found in collective agreements (employers and unions usually negotiate these)
3) Judge-made rules based in common law torts that mostly apply to labour picketing and strikes, which are issues and enforced by the courts
26
Collective agrement
A contract between an employer an a trade union that sets out the conditions of employment for a group of employees
27
Interest arbitrator
An individual or 3-person expert arbitration board tasked with writing the terms of a collective agreement when the union and employer are unable to reach agreement through voluntary collective bargaining
28
Labour arbitrator
An individual or 3-person expert arbitration panel appointed to decide disputes over the application and interpretation of collective agreements
29
Benefits of collective bargaining
- Gives workers democracy and voice
- Distributive fairness in terms of workers get a larger share of the economic pie
- Improved productivity
30
subsystem in a legal society
a self-contained system within the broader social system that possesses its own rules, norms, and modes of communication
31
Feedback loop
An explanatory device that demonstrates how outcomes produced by a system can influence other system and adds feedback into the original system as information in a process of perpetual learning, experience, and change
32
Internal feedback loop
Shows how the outputs of each regime "feed back" into the other regimes as information that can influence actors' behaviour and rule-making processes, and eventually produce new outputs
33
External feedback look
An analytical tool that draws our attention to the crucial fact that laws are a function of the broader social system in which they exist and that laws involve an evolutionary process
34
Spillover effect (of collective bargaining)
The effects that collective agreement settlements bargained by unions and employers have on individual employment
35
Union avoidance
A management strategy designed to reduce the risks that employees will join unions
36
Free trade
A term used to describe a trade law policy characterized by low or zero trade tariffs and low or zero quotas on the amount of goods that flow between national borders
37
cartel
A combination of individuals or companies that attempt to use collective force or coordination to fix market prices
38
Equilibrium wage rate
A theoretical wage rate fixed through market forces in which the supply of labour equals the demand for labour
39
Gini coefficient
A statistical measure of economic inequality that measures the extent to which income distribution among individuals or a household within a population deviates from a perfecty equal distribution
Gini score of 0 → everyone earns the same
Gini score of 1 → one person earns all the income
40
Independent contractor
A worker who is in business for themself and who therefore is not an employee
41
employee
A worker who is in a position of subordination to an employer and subject to rules set out in an employment contract
42
Dependent contractor
A worker whose status falls in between that of an employee and an independent contractor
This worker has more autonomy and independence than a typical employee, yet remains economically dependent on one customer for income and is subject to considerable control at the hands of that customer
43
Commercial contract
A contract between two businesses, including a business in the form of an independent contractor
44
Vicarious liability (tort law)
A legal rule under which an employer is liable for damage caused to a third party by one or more of its employees
45
Gig economy
An economic arrangement characterized by an exchange of labour for money that is facilitated by an app or electronic platform that connects customer or workers
46
Standard employment relations
A model of employment characterized by stable, long-term job security, full-time hours, decent benefits, and wage reats that rise steadily over time
47
Own account self-employed workers
Independent contractors who have no employees
48
Precarious work
Work that is defined by job characteristics such as job insecurity; short job tenure; low pay; few benefits; low collective bargaining coverage; and sporadic, limited, or unpredictable work hours
49
What covers the terms and conditions of employment in a unionized workplace
Collective agreement
50
What covers the terms and conditions of employment in a non-unionized workplace
employment contract
51
Process of adjusting the terms and conditions of employment in a unionized workplace
- Employee doesn't have jurisdiction to adjust the terms of the contract
- All bargained by the union at the collective bargaining table
52
Process of adjusting the terms and conditions of employment in a non-unionized workplace
If parties have a dispute the employee decides if they want to bring the issue to the courts or applicable tribunal and have the sole responsibility for this carriage
53
Dispute resolution process in a unionized workplace
union has carriage of grievance where they determine if they will bring the issue forward to a labour arbitrator
- a grievance arbitration is held wherein the arbitrator handles the resolution of the matter
54
Dispute resolution process in a non-unionized workplace
the employee or employer attends the court or in specific areas such as human rights, tribunals
55
which is the chief justification for creating a special regime for employment contracts different from that governing commercial contracts?
employees are vulnerable in a way that independent contractors are not
56
Which of the following best defines the "broader legal subsystem"?
developments in legal fields other than work law that affect the development of work law
57
In Ontario, under what conditions can an employee-trainee (intern) be exempt from the provision of the Employment Standards Act?
Employees are vulnerable in a way that independent contractors are not
58
What has been the Canadian government's position regarding collective bargaining?
it has been alternatively supportive and hostile since the inception of collective bargaining in the mid-1940s, depending upon the particular government in power
59
Which of the following does the author claim is the main purpose of the collective bargaining regime?
To introduce certainty and stability into the employment relationship
To create incentives for workers to work as efficiently as possible
To produce a countervailing force that could help equalize bargaining power between employers and workers
To create penalties when unions do something illegal
To produce a countervailing force that could help equalize bargaining power between employers and workers
60
Shareholders are demanding a higher return on their investment. At the same time, the company is undergoing a union organizing drive. The senior manager is nervous that the drive will succeed and put upward pressure on wages. He calls an employee meeting and tells everyone that if the union is formed there will be downsizing. Which of the following subsystems has influenced the manager?
economic and market subsystem
61
According to the author, why are external inputs relevant?
external inputs exert pressure upon the work law subsystem itself and help us to understand it
62
What are workplace norms?
Unwritten rules about how people can expect to act and be treated in the workplace.
63
According to the test set out by the Supreme Court of Canada in Sagaz, what is the single-most important question to answer to determine employment status?
Whose business is it?
64
What is the principle characteristic of a dependent contractor?
They work exclusively or almost exclusively for one company
65
Belton vs. Liberty Insurance
-Comissioned sales reps selling insurance
-Originally were independent contractors and their agreements allowed the company to change commission schedules with a 90 days' notice
-Agents refused to sign a new agreement and were terminated, leading to a lawsuit for wrongful dismissal
What it means:
Sales reps are deemed employees, not independent contractors per their contracts.
Courts focus on exclusive or near-exclusive performance for the company.
It empowers employees to test new employment terms due to the employer's unilateral decision.
Decision allows employees to "try out" an employers unilateral changes to their contract before deciding whether to accept the new terms or quit and sue for constructive dismissnal
Lack of a defined "reasonable time" for assessment creates uncertainty for employers.
66
Belton and Ontario Ltd. v. Sagaz Industries Canada Inc
-Plaintiff selling fake sheepskin covers at Canadian Tire under exclusive agreement
-Sagaz wants an exclusive agreement instead
-Sagaz hires marketing firm, AIM
-AIM bribes Canadian Tire and gets exclusive agreement
Decision: Sagaz is not liable, AIM is independent contractor
Vicarious liability
Judge applied the "organization test", which asked whether the work in question is "an integral part of the business" of the purported employer or only peripheral to that business, and whether the worker had been integrated into the business such through regular scheduling and required adherence to company rules and procedures
67
Types of subsystems
Social, cultural, religious, political, legal, economic
68
3 requirements to create a legally enforceable contract
1) Capacity to enter into a contract
2) Intention to create a legally enforceable contract (objective and subjective test)
3) Three elements of a contract - offer, acceptance and mutual consideration
69
Objective test
a legal test used in interpretation of contracts and statutes that asks "what would a reasonable person of normal intelligence think, if told about the circumstances?
70
Subjective test
a legal test used in the interpretation of contracts and statutes that asks, "What was this person actually thinking at the time?"
71
Mutual consideration
The contract must provide something of value to both the employer and the employee that they would otherwise not receive
72
Voidable contract
A contract that may be declared void at the option of one of the parties due to a deficiency
73
Contract modification
A change to one or more terms of the contract during the term of the contract
74
forbearance
A promise by one party in a contract to another party to refrain from exercising a contractual right for a period of time
75
Expressed contract terms
contract terms
terms of a contract that the parties have explicitly agreed to, either orally or in writing
76
Ancillary contract terms
contract terms found in written materials that are physically separate from an employment contract but that include rules that relate to the employment relationship
77
Implied contract term
a default contract term invented by common law judges and read into an employment contract when the written terms of the contract (if any) do not address the specific issue addressed by the implied term
78
Ambiguous contract term
A contract term capable of multiple interpretations
79
Parol evidence rule
a common law rule of evidence i which a judge is prohibited from hearing evidence that the parties intended a meaning different than what indicated in the clear language of the written contract
80
Contra proferentem doctrine
a rule of contract interpretation in which a judge interprets an ambiguous contract term in the manner most favourable to the party that did not draft the contract
81
2 most commonly litigated expressed contract terms
1) Restrictive covenant clauses
2) Termination of contract clauses
82
Restrictive covenant
a contract term that restricts the right of a former employee to engage in certain competitive practices against their former employe
83
Three main types of restrictive covenants
1) A non-disclosure clause prohibits a former employee from disclosing information that has proprietary value to the employer
2)A non-solicitation clause prohibits a former employee from attempting to persuade the employer's customers to stop doing business with the employer and instead do business with the employee
3) A non-competition clause prohibits a former employee from entering into a competing business with the employers"
84
Conditions a lawful restrictive covenant satisfies
"1) The covenant protects a real "proprietary interest" worthy of protection, such as trade secrets, confidential business information, or key business connections and customer lists, and is not simply an attempt to restrict healthy competition
2) The covenant is reasonable as to geographical and temporal (time) scope, considering the specific type of work and the interests involved
3) The covenant is reasonably necessary to protect the legitimate interests of the (former) employer, and no alternative measure that is less restrictive on the former employee could protect the employer's interest
4) The covenant is unambiguous, such that its scope is clear and understandable
85
Public policy illegality
A common law right of judges to void all or part of a contract because it is contrary to public policy
86
Wrongful dismissal
A type of lawsuit by an employee against a former employer alleging that the employer terminated their contract without complying with the implied term in the contract requiring "reasonable notice"
87
Repudiation of contract
A breach of contract that demonstrates an intention by the party to treat the contract as at an end and to no longer be bound by the contract
88
Fixed-term contract
A contract with a specified end date
89
Fixed-task contract
A contract to perform a defined task that comes to an end when the task is complete
90
Notice of termination clause
A clause in an employment contract that specifies how much notice is requires to be given to the other party in order to lawfully terminate the contract
91
Mandatory retirement
A legal rule in a statute or contract that terminates an employment contract upon the employee reaching a specified age
92
Indefinite-term contract
A contract that has no specified end date
93
Legal issues that can arise that lead the courts to decline to enforced expressed notice of termination clauses
- When the notice of termination clause violates statutory notice provisions
- When the notice of termination clause is "unconscionable"
- When changes to the employee's job have rendered the original notice of termination clause unenforceable so that they "changed substratum doctrine" applies"
94
Duty to mitigate
A legal obligation on the victim of a breach of contract by the other party to make reasonable efforts to limit the amount of damages suffered as a consequence of the breach
95
Unconsionability doctrine
A contract or contract term that a court refuses to enforce because it is a result of inequality of bargaining power that was exploited by the more powerful party to obtain a contract that is substantially unfair condifering community standards of commercial morality
96
All of these elements must be present for a term of a contract to be set aside as unconsionable
1) A grossly unfair transaction
2) A lack of independent legal advice or other suitable advice
3) An overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, language of the bargain, blindness, deafness, illness, senility, or similar disability
4) The other party knowingly taking advantage of this vulnerability
97
Changed substratum doctrine
A legal doctrine in employment law in which an employee's job responsibilities have changes so substantially from the time the original contract was executed that the courts rule the original
98
Business efficacy test
An approach used by common law judges to justify the implication of a contract term on the basis that the term is necessary to make the contract effective
99
Officious bystander test
An approach used by common law judges to justify the implication of a contract term based on the presumed intention of the parties.
The idea is that a contract term is implied if it would be obvious to an uninterested bystander that both parties intended the term to be part of the contract
100
Contract term implied "in fact"
A term implied into a contract by a judge that reflects the presumed intentions of the parties
101
Contract term implied "in law"
A term implied into a contract by a judge as a matter of the legal duty that the judge believes ought to be imposed due to the nature of the particular type of contract
102
Summary dismissal
Termination of an employment contract by an employer without notice to the employee in response to a serious breach of contract
103
insubordination
A breach an employee of the implied or expressed term of an employment contract requiring the employee to obey an employer's orders and instructions
104
demotion
A reassignment of an employee's position by an employer to another position with lower pay, less prestige, or less responsibility
105
Constructive dismissal
A fundamental change to an employment contract by an employer that an employee may treat as an effective termination of contract
106
Implied obligations that regulate employee conduct
1)Obey lawful orders of the employer
2)Serve the employer faithfully
3) Cooperate in advancing the employer's commercial interests
4) Provide reasonable notice of resignation
5) Not compete and to protect confidential information
6) Report to work and to avoid lateness and absenteeism
7) be honest
8)Perform competently and safely
9) Avoid intoxication
10) Avoid harassment
107
Implied obligations that regulate employer conduct
1) Provide reasonable notice of termination of an employment contract
2)Provide a reasonably safe work environment
3) treat employees wit "decency, civility, respect, and dignity" and to engage in "fair reeling"
4) Permit employees to work
5) Compensate employees for work performed
6) Act with good faith in the manner of dismissal of an employee
108
Layoff
A non-disciplinary suspension imposed by an employer of the employee's right to come to work, usually due to a lack of available work
109
Unpaid suspension
A temporary suspension of an employee's right to come to work imposed by the employer as a form of discipline for employee misconduct
110
Quantum meruit
An entitlement to be paid a fair market rate for work performed when the amount is not stipulated in a contract
111
Meiorin
Requires the employer to establish the following (3 steps)
1) Employer adopted the standard for a purpose that is rationally connected to the performance of the job (objective)
2) Employer adopted the standard in an honest and good-faith belief that it was necessary to the fulfillment of that purpose (subjective)
3) Standard is reasonably necessary the accomplishment of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer (objective)
112
Wallace
- Wallace damages: used in wrongful dismissal decisions in Canada to describe damages ordered against the employer acting in bad faith in the way it terminated an employment contract.
- Established damage for mental suffering or hurt feelings could be awarded to a dismissed employee if employer engages in “bad faith dismissal.”
- When damages where awarded they tended to be in the range of additional 1 to 4 months added to the period of reasonable notice.
- This was altered a decade afterwards in the Honda case
113
Honda
The employee must present some evidence that establishes that they suffered physical or psychological harm caused by the employer incentive behavior rather that the fact of being dismissed. (often difficult to establish)
The court will not simply extend the notice period by a month or two but instead compensate the employee for the actual harm suffered.
More difficult for an employee to obtain aggravated damages for bath-faith discharge
Came after the Wallace
114
Canadian Pacific Railway Co. V. Lockart
A employer (master) is responsible not just for what he authoress his employee (servant) to do but also for the way in which he does it
If the unauthorised and wrongful act of the employee (servant) is not so connected with the authorised act as to be a mode of doing it but is an independent act the employer (master) is not responsible
115
Renaud
Emphasizes that accommodation is a collective responsibility.
Employers are obligated to explore flexible options, modify jobs, schedules, and provide necessary tools, with accommodation subject to undue hardship. Employers are also responsible for proactively educating the workplace on accommodation needs.
Employees are expected to reasonably participate in their own accommodation, provide necessary information, and accept reasonable accommodations, not necessarily their preferred ones.
Unions are to collaborate with workers and employers in seeking accommodation measures, even if it requires exceptions to collective agreement provisions, as long as it doesn't cause undue hardship.
116
Hadley v. Baxendale
Created the reasonable contemplation test (provides that damages for breach of contract are available only for humans that the parties would reasonably have contemplated at the time the contract was formed)
Consider what harm the employee would suffer if dismissed without notice. (first case that was established with compensatory damages)
117
Entrop v. Imperial Oil Ltd
Human rights legislation prevents workplace discrimination based on prohibited information, safeguarding individual privacy. Employers can request necessary medical information for accommodation but face restrictions on mandatory drug and alcohol testing to protect employee privacy
118
Mustopha v. Culligan
Have to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered a personal injury.
Used the law of tort which imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not insurance.
Non-intentional tort (negligence), B suffered damages that were caused by. A's behavior
119
Moorcock
Relied on the "pre-assumed intention of the parties" as the basis for implying the contract term. Origins of the implied contract term (terms that are read into the contract by judges to fill voids in expressed contract terms)
The idea that implying the term, the judge is simply given expression of the agreement the parties themselves intended all along.
Court referred to the business efficacy test (an approach used by common law judges to justify the implication of a contract term on the basis that the term is necessary to make the contract effective)
120
Bardal Factors
The "Bardal Factors" used by judges to consider in calculating reasonable notice, they are intended to act as a proxy for assessing how long it might reasonably take the employee to find a new comparable job.
Takes in account length of service, age of employee, character of employment (non-managerial employees), availability of other employment
Requires judges to survey the situation at the time of the termination and to calculate a reasonable period of notice based on what they see and think is fair and reasonable in the circumstance.
121
Rejdak v. Fight Network Inc
Gave 3 important lessons about common law rules of contract
1)amendments to an employment contract are only enforceable if there has been mutual consideration
2) a verbal offer by an employer to employ a job applicant can create an enforceable employment contract if the worker accepts the offer (a written contract is not necessary, and many employees in Canda have never signed a written contract)
3) if an employee commences work before having signed a written employment contract, than a written contract introduced afterwards constitutes a proposed modification to the original verbal contract, unless the parties had agreed overwise. ( verbal contract’s implied requirements that employer provides “reasonable notice”)
122
Two-step model for analyzing human rights case at work.
1) Does a rule, standard, or practice discriminate against the complaint on the basis of a prohibited ground in the human rights statue (if no human rights legislation does not apply)
2) Is that discrimination nevertheless permitted by a statutory defense or an exemption in the human rights statute like BFOR and special interest organization defense, etc. (if no discrimination is a violation of the human rights statue)
If yes, the discrimination is not a violation of the human rights
123
what does public policy illegality mean?
it refers to the common law right of judges to void specific contract terms if they are deemed contrary to public interest
124
What does "new consideration" mean?
It refers to the obligation to provide a new value or benefit to the employee when seeking to alter the contract
125
Which of the following is NOT an implied term regulating the conduct of employees?
The implied duty to refrain from personal use of employer's asset
126
What is "insubordination" in the context of the employment contract?
The refusal to follow the employer's lawful work orders
127
The refusal to follow the employer's lawful work orders
Moorcock articulated the basis upon which it was legitimate to imply a term into a contract
128
What does "forbearance" mean in relation to the employment contract?
it refers to a promise by one party to a contract not to exercise a contractual right for a particular period of time
129
Why are restrictive covenant clauses controversial?
They are controversial because they seem to pit 2 legitimate interests against each other: the right of trade against the right of contract
130
What is the "business efficacy" test?
a term for the common law right to imply contract terms if such is deemed necessary to give effect to the business transaction being contemplated
131
Many implied common law terms are "read into" all employment contracts. Can they be overridden?
they can be overridden by express terms since the point of implied terms is only to fill-in-the-gaps left by contracting parties
132
Why have courts been less accepting of non-competition clauses than of other types of restrictive covenants?
Because other types of restrictive covenants are generally adequate to protect the former employer's business interest and are less intrusive upon the former employee
133
Are all employment contracts made with minors (those under the age of 18) automatically void?
No. contracts that are generally to the benefit of the minor may be enforced
134
Which of the following are necessary and sufficient to create a valid employment contract?
a) Capacity to contract, intention to contract, and offer, acceptance, mutual consideration
b) All of the above
c) A written offer stating, minimally, wages and job duties that is then signed by the employee
d) Offer, acceptance and mutual consideration
a) Capacity to contract, intention to contract, and the requisite elements of the contract
135
What is the significance of Rejdak v. Fight Network Inc.?
It stands for the proposition that a contract presented even one minute after the commencement of a new job will constitute an amended contract
136
What is "mutual consideration"?
The requirement that a contract contain something of benefit to both parties
137
"At will" employment contract
An employment contract in which with a party may terminate the contract at any time, for any no reason, with no notice to the other party. Default in US. In Canada employment standards legislation requires notice of termination
138
Bardal factors....
Criteria considered by Canadian courts in assessing the length of time required by the implied obligation to provide reasonable notice of termination of an employment contract
*requires judges to survey the situation at the time of termination and calculate a reasonable period of notice based on a considering list of factors
139
Bardal factors judge considers
1) Length of service
2) age of the employee
3) character of the employment (level)
4) availability of similar employment having regard to the experience, training, and qualifications of the servant
140
inducement
A factor considered in assessing the length of reasonable notice that should be awarded to an employee whose employment contract is terminated by employer A after employer A encouraged or enticed the employee to quit a prior job with company B to come work for employer A
141
Frustration of contract
The termination of contract caused by an unforeseen event that enders performance of the contract impossible
142
Test for frustration
Frustration occurs whenever the law recognises that: Without default of with pary, a contract obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract
143
Self-induced frustration
When the actions of the employer or employee make it impossible for the contract as originally envisioned to be performed.
The courts have refused to apply the doctrine of frustration to self-induced frustration
144
Innocent absenteeism
An employee's absence from work due to reasons that are not blameworthy such as illness, disability, or religious observance
*not cause for summary dismissaal
145
Undue hardship
The legitimate defence that an employer may raise to justify why it could not provide an accommodation to an employee. This standard is demanding and requires the employer to demonstrate that significant difficulties—beyond mere inconvenience—would result if it had to accommodate the employee.
146
Factors in determining undue hardship
- Safety
- Size of the employer's operations
- Employee morale
Interchangeability of the workforce and facilities
- Cost
- Infringement of a collective agreement
147
An employer can't dismiss an employee for something related to a disability unless it can...
...first demonstrate that it is not possible to accommodate the employees disability without incurring undue hardship
148
Scenarios in which the employer is not required to provide any notice of termination
1) The employee terminates the contract
2) The contract is fixed-term or fixed-task
3) When the employee commits a fundamental breach of contract, which the employer treats as cause for summary dismissal
4) When the contract is frustrated
149
Balance of probabiliites
An evidentiary standard of proof requiring evidence that it is more likely than not that an incident occured
150
Summary dismissal 2 step test
1)Did the employee establish on a "balance of probabilities" that the employee breached the contract
2) Is the employees misconduct sufficiently serious that it undermines the foundation of the employment contract?
151
Principle of proportionality
The test applied in summary dismissal cases that asses whether the termination of an employee's contract without notice is an appropriate response to the employee's misconduct, considering all of the relevant facts
152
Mitigating circumstances/factors
Personal or workplace-relateed factors that, while not directly the cause of an employee behaviour, help explain or justify an employee's behaviour
153
Wilful breach of contract
A deliberant, defiant, or premeditated violation of the requirement(s) of a contract
154
Cumulative just cause
Grounds for summary dismissal based on an accumulation of wrongful acts by an employee over a period of time
155
Cumulation incident
The final breach of contract by an employee following progressive discipline that the employer relies on to justify termination of an employee for cause
156
For an employer to win an argument based on a cumulative cause it must persuade the court that:
1) The employee was given clear and express warnings about their performance
2) The employee was given a reasonable opportunity to improve after the warnings
3) The employee failed to improve notwithstanding being given a fair change
4) The cumulative failing of the employee prejudiced the employer's business
157
Duty to warn
A requirement in both the common law and collective bargaining regimes for employers to warn employees that their behaviour or performance is unacceptable and to give them a reasonable opportunity to correct their performance
158
Progressive discipline
The application in stages by employers of progressively more serious discipline to correct performance problems
159
Condonation
When a party that could have treated the employment contract as having peen repudiated (terminated) by the other party's breach of the contract elects not to treat the contract as being repudiated
160
Specific penalty clasue
A term in a contract that defines the penalty that will result as a consequence of a psecified breah of contract by one o the parties
161
time theft
When an employee falsely claims wages for time not actually worked
161
Gross incompetence
A level of employee performance that falls far below that expected fo a reasonable competent employee
162
insubordination
A breach by an employee of the implied or expressed term of an employment contract requiring the employee to obey an employer's orders and instructions
163
insolence
An over expression of defiance by an employee to the authority of the employer
164
Duty to accomodate
A legal requirement in human rights law to take steps to remove the discriminatory barriers to employment including altering schedules, rules, or work patterns or changing the physical design of a workplace
165
Grounds for summary dismissal
- Dishonesty and conflict of interest
- Gross incompetence and safety violations
- Breach of faithful service to the employer
- Insubordination and insolence
- Harassment
- Violence and threats of violence
- Absenteeism and lateness
- Off-duty conduct
- Inappropriate use of employer technology
- Intoxication at work
166
Acceptance of an employer's repudiation of contract
When an employee responds to a repudiation of the employment contract by the employer by treating the contract as over and quitting
167
Two types of constructive dismissal
1) Based on employer behaviour that may not breach a term of the contract but makes continued employment "intolerable"
2) Based on substantial breach of an essential term of the contract
168
Cumulative effect constructive dismissal
A constructive dismissal that is founded on an accumulation of breaches of the employment contract by the employer, none of which alone would be serious enough to contribute constructive dismissal
169
Three questions that must be answered to apply the second branch of the test for constructive dismissal:
1) What are the expressed and implied terms of the contract, and did the employer breach one of these terms?
2) If the employer breached a contract term, then was that breach "substantial" and detrimental to the employee? (apply an objective test)
3) Did the employee "accept" the repudiation and treat the breach as having terminated the contract
170
Lateral transfer
a reassignment of an employee's position to another position that is roughly equal in terms of pay, prestige, and responsibility
171
administrative leave
A period of time during which an employer refused an employee the right to report to work for reasons other than a lack of work or discipline, usually during the period of an ongoing investigation into a possible employee misconduct
172
Damages
An amount of money a party guilty of a contract or tort violation is ordered to pay the innocent party to compensate the person for the harm incurred
173
Specific performance
An order by a court requiring a party found to have breached a contract to carry our obligations as specified in the contract
174
Categories of damages in wrongful dismissal lawsuits
- Compensatory damages
- aggravated or "moral" damages for bad faith in the manner of dismissal
- punitive damages
175
Reasonable contemplation test
The test of contract damage "remoteness" from the 1854 case of Hadley v. Baxednale. It provides that damages for breach of contract are available only for harms that the parties would reasonably have contemplated at the time the contract was formed
176
Aggravated Damages
Damages awarded to the innocent party that compensate for mental or psychological pain and suffering caused by the guilty party's wrongful act
177
bad faith discharge
When an employer dismisses an employee in a manner that is dishonest, harsh, or insensitive to the feelings and vulnerability of the employee
178
Wallace Damages
A phrase commonly used in wrongful dismissal decisions in Canada to describe damages ordered against an employer for acting in bad faith in the manner in which terminated an employment contract.
*Wallace v. United Grain Growers Ltd. (1997) was the Supreme Court of Canada decision in which these damages were first ordered
179
Punitive damages
damages ordered against a party who engages in outrageous or egregious behaviour deserving of special denunciation and retribution
180
Two key obligations imposed on the dismissed employee in the case of duty to mitigate
1) To make reasonable efforts to look for a new job
2) To accept a job offer that a reasonable person in their position would accept
181
resignation
When an employee terminates the employment contract by engaging in conduct that evinces a clear intention to terminate the contract
182
Wrongful quitting
A term sometimes used to describe a lawsuit filed by an employer alleging that an employee resigned without providing the employer with the proper amount of notice of resignation
183
Forced resignation
When an employer puts pressure on an employee to resign or face being fired
184
Which of the following does the author identify as the main controversy regarding the interaction between the frustration of contract doctrine and duty to accommodate found within all human rights legislation?
That frustration of contract contemplates performance of the job as per the original contract whereas accommodation contemplates the possibility of offering altered job duties or a different position
185
What does research indicate is the significance of age as it relates to determination of notice periods?
That age is a significant factor for those over 50 who are awarded more notice
186
Are unpaid suspensions treated as fundamental breaches of the employment contract?
Unpaid suspensions are legitimate disciplinary sanctions that employers may impose without breaching the employment contract if the conduct being disciplined would have merited summary dismissal instead
187
What does "at-will" employment mean?
The default model in the U.S. whereby an employment contract made be terminated by either party with no notice whatsoever
188
What is the significance of Hadley v. Baxendale?
It stands for the proposition that the employer is not liable for every loss that results from a wrongful termination but only those which were reasonably contemplated
189
According to Professor Geoffrey England, what is the doctrine of frustration most concerned with?
Determining who shall bear the burden of the event which frustrated the contract
190
What is the test for assessing whether an employee has resigned?
The employee's intention to quit must be "clear and unequivocal." Depending upon the situation, saying "I quit" isn't enough
191
Which of the following is a controversy identified with upholding disability or illness as a basis for frustration of contract?
Whether to use medical evidence which existed at the time of the supposed "frustration", or evidence about how the worker's health was at the time of trial
192
What is "constructive dismissal"?
It refers to a type of dismissal wherein the employer breaches the terms of the contract resulting in the employee quitting in response
193
What is the "duty to mitigate"?
It is a duty of the employee to attempt to lessen the amount that the employer is required to pay in reasonable notice
194
What is the main consequence that flows from establishing "cause" for dismissal?
The employer isn't required to provide notice
195
Is employer motive ever a factor considered by courts when assessing constructive dismissal?
Yes. While the intention to compel an employee to quit will be treated as a constructive dismissal, an employee may be constructively dismissed even where the employer had no intention to compel the employee to quit
196
What is the purpose of the Bardal factors?
Their purpose is to guide determination of the reasonable notice period by acting as a proxy for how long it will take the dismissed employee to find comparable employment
197
What is the difference between Wallace and Honda?
Honda altered the approach in Wallace by awarding a separate monetary value to bad faith termination rather than extending the reasonable notice period
198
Fair Employment Practices act
prohibits discrimination in employment based on race, creed, colour, nationality, ancestry, and place of origin.
199
Human rights tribunal
An expert administrative tribunal created by a government to hear and decide human rights complaints and interpret and apply human rights statutes
200
Human rights commission
an administrative body that oversees the implementation and enforcement of human rights legislation
201
Employment Equity
A legal model or remedial order that creates a positive obligation on an employer to redress historical discrimination by giving prefence in hiring to designated groups such as women, visible minorities, indigenous people or people with disabilities
202
Hiring order
An order issued by human rights tribunal or court requiring an employer to offer employment to a person previously denied employment for discriminatory reasons
203
Forum Shopping
The practice whereby a litigant attempts to litigate the same legal issue or the same facts in multiple legal forums to find the most favourable outcome.
204
Direct Discrimination
a type of discrimination in which a rule, standard, or practice distinguishes and individual or group based on a personal characteristic, such as separate pay scales for men and women or the practice of hiring people of only one gender or one skin colour
205
Indirect discrimination
a type of discrimination in which a rule, standard, or practice treats everyone the same on its face, yet has an adverse impact on some people because of a personal characteristic
206
Six factors to consider when determining if the employer has reached undue hardship
1) safety
2) size of the employee's operations
3) employee morale
4) interchangeability of the workforce and facilities
5) cost
6) infringement of collective agreement (unionized environment)
207
Defences (other than duty to accommodate) to prima facie discrimination
- special interest organization defence
- nepotism defence
- personal care attendant defence
- bona fide pension or insurance plan defence
- special program defence
208
special interest organization defence
such as when a discriminatory practice is necessary to form that position i.e. religious schools
209
Nepotism Defence
where an employer can grant or withhold preferences based on family relationships
210
Personal Care Attendant Defence
Permitting discrimination against those whose primary care duty is attending to the medical or personal needs of a person
*many caveats in this defence
211
Bona Fide pension or insurance plan defences
age is usually an exception as long as the plans have adopted the policy in good faith
212
Special program defence
ex. special employment privileges for those who are traditionally disadvantages
213
Prohibited grounds of discrimination
personal characteristics that are protected from discrimination in human rights statutes, including but not limited to sex, age, race, skin colour, and religion
214
Two-step model for analyzing human rights at work
1) Does a rule, standard, or practice discriminate against the complaint on the basis of a prohibited ground in the human rights statute?
NO: human rights legislation does not apply
YES: go to question 2
2) Is that discrimination nevertheless permitted by a statutory defence or exemption in the human rights statute?
statutory defences/ exemptions:
- BFOR defence
-special interest organization defence
NO: the discrimination is a violation of the human rights statute
YES: the discrimination is not a violation of the human rights statute
215
Prima facie case of discrimination
In human rights law, when a complainant provides sufficient evidence that he or she has been the victim of discrimination on a ground prohibited in a human rights statute, which shifts the burden to the employer to establish that no unlawful discrimination occurred
216
Bona fide occupational requirement (BFOR)
A defence to discrimination that an employer may use to prove that a discriminatory rule, standard, or practice was enacted for legitimate business reasons; it requires that the employer prove that it cannot accommodate the complaint's needs without causing itself undue hardship
217
Three sections in the BFOR defence that deal with different types of discrimination
1) Indirect discrimination based on all prohibited grounds
2) Direct discrimination based on disability when a disable employee cannot perform the essential duties of a job
3) Direct discrimination based on age, sex, record of offence, and marital status
218
The merorin test requires that employers establish the following:
1) that the employer adopted the standard for a purpose that is rationally connected to the performance of the job (objective)
2) that the employer adopted the standard in an honest and good-faith belief that it was necessary to the fulfillment of that purpose (subjective)
3) that the standard is reasonably necessary to accomplish of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer (objective)
219
Four-step process employers must engage in when investigating possibilities for job accommodation
1) determine whether the employee can productively fulfill their existing job as it is presently constituted
2) if not, determine whether the employee can perform the essential aspects of the existing job in a modified or rebundled form
3) if not, determine whether the employee can accomplish the duties of another job in its present form
4) if not, determine whether the employee could perform another job in a modified or rebundled fashion
220
mutable
a condition that is liable to change
221
Which of the following is the most commonly used defence against a charge of discrimination?
The bona fide occupational requirement defence
The nepotism defence
The personal care worker defence
The special interest organization defence
The bona fide occupational requirement defence (BFOR)
222
Which of the following best captures the process for determining whether or not an act has resulted in a violation of Human Rights legislation?
Question 2 options:
Determine whether or not a violation of a prohibited ground has occurred, then determine whether or not exceptions are permitted in the statute
Determine whether or not the discriminatory rule was intentional or arose from a legitimate work-related requirement
Determine whether or not the employee was given an opportunity to choose to conform to the rule being applied
Determine whether or not a violation of a prohibited ground has occurred, then determine whether or not exceptions are permitted in the statute
223
Which of the following is true with regard to "record of offence"?
Question 3 options:
In all jurisdictions, prohibited grounds of discrimination protect against discrimination for past criminal and provincial offences that are not relevant to the job
Only the federal jurisdiction offers any protection for those charged with criminal offences
Prohibited grounds of discrimination vary among jurisdictions, but in all jurisdictions some protection against record of offences exists
Several jurisdictions offer some protection based on record of offences, but how that protection is defined varies considerably among these jurisdictions
Several jurisdictions offer some protection based on record of offences, but how that protection is defined varies considerably among these jurisdictions
224
What was the main purpose of the Racial Discrimination Act, 1944?
It prohibited advertisements that were discriminatory, or indicated and intention to discriminate, on the basis of race or creed
225
In Ontario, is it a violation of the provincial Human Rights Code to fire someone because they support a particular political party?
No, it is not a violation. Since political opinion is not protected in Ontario, it is permissible to fire someone for supporting a particular political party
226
Which province was the first to include sexual orientation as a prohibited ground of discrimination?
Quebec
227
Which of the following is not a remedy generally available to human rights tribunals?
Question 7 options:
Damages to replace lost employment income
Damages awarded for hurt feelings and injury to dignity and self-respect
The power of reinstatement and hiring orders
The power to award jail time for purposeful and serious violations
The power to award jail time for purposeful and serious violations
228
229
What is the purpose of a "special program defence"?
It allows employers to give preferential treatment in employment to advance the interests of a traditionally disadvantaged group
230
231
What is significant about the case called Renaud?
In Renaud, the Supreme Court of Canada established that the search for viable accommodation was not solely the employer's responsibility but also the union's
232
Which of the following is the best example of indirect discrimination?
A job rule requires that servers seeking employment be blond
Sign advertising for job seekers reads: Barbers wanted
A sign advertising for job seekers reads: Bouncers wanted. Must be minimum 5'11" and 200 lbs.
A sign advertising for job seekers reads: Bouncers wanted. Must be minimum 5'11" and 200 lbs.
233
What reason(s) does the author offer for why the ground of disability makes up the bulk of accommodation claims?
Because the nature of disability is such that the accommodation varies more greatly than for other grounds and it is more changeable than other grounds
234
Which of the following is not required to establish a prima face case of discrimination?
That someone experienced an adverse impact
That someone has a characteristic that is a prohibited ground of discrimination
That a protected characteristic was a factor in the adverse impact
That a protected characteristic was the main reason for experiencing the adverse impact
That a protected characteristic was the main reason for experiencing the adverse impact
235
The five common features of the human rights regime
Anti-Discrimination Provisions, Commissions, Complaint Process, Tribunal Remedies, Limits on Multiple Forums
236
Which of the following is not a prohibited ground of discrimination in Ontario?
Age
Family status
Gender expression
Political opinion
Record of offence
political opinion
237
In Ontario, is it permissible for religious organizations to hire people of a particular religion thus discriminating against those of other religions?
It is permissible if the specific job is justifiable as a BFOR
238
Gender wage gap
The difference between the earnings of women who work full-time year-round as a group and those of men who work full-time year-round as a group.
239
Tipping out
The practice by some restaurant or bar employers of collecting (and sometimes taking) a portion of servers' tips and dividing the tip pool among other employees.
240
Piecework pay
wages calculated based on the number of pieced produced by an employee
241
Living wage
A measure of the wage level that would be necessary to enable a full-time employee to earn enough money to meet basic needs
242
Wage freeze
A law or employer practice that fixed a minimum wage below which an employer cannot pay an employee
243
Statutory Wage Floor
A law that fixes a minimum wage below which an employer cannot pay an employee
244
Racial wage gap
The difference in earnings between the dominant racial group in a society and racialized groups
245
Systemic discrimination
Practices, behaviour, norms, or policies within an organization that may be unintentional and unobserved yet perpetuate disadvantages for certain individuals because of a personal attribute or characteristic
246
Complaint-based model
A statutory model that depends on people filing complaints alleging that their legal rights have been violated, which initiates a government-led investigation into whether there has been a violation of this statute
247
Equal Pay Laws
Laws or rules that require employers to pay women the same wage rate as men for "equal work" (which usually means "the same job"
248
Occupational Crowding
A term used to describe the segregation of women and men into different types of jobs. It is usually used to explain how women tend to be much more highly represented in lower-paying jobs than are men
249
Equal Pay for Equal Work
A statutory model that requires equal pay for men and women who perform "substantially similar work" in the same establishment
250
Pay equity
A statutory model designed to address systemic gender wage discrimination by comparing lower-paying female-dominated job classes to higher-paying male-dominated job classes when the total score is the same or substantially the same in an evaluation of the skill, effort, responsibility, and working conditions of the two job classes
251
Gender neutral job evaluation system
a job evaluation system used in pay equity assessments that measures a job's skill, effort, responsibility, and working conditions and that is free of explicit and systemic gender discrimination
252
comparator
in pay equity, the male job class to which a female job class is compare to be of equal or comparable value
253
Permissible wage difference
An explanation for a wage difference between a male and female job class that is accepted as valid and non-discriminatory in a pay equity statute
254
Ratify
a term used to describe the process in which a national government endorses and agrees to implement into its legal system the requirements of an international legal convention or other legal instrument
255
Overtime pay
A premium above the normal wage rate of an employee that must be paid for every hour worked above the threshold of standard working hours (usually 1.5x the normal wage rate)
256
Precarious worker
A worker whose labour market participation is characterized by low pay, job insecurity, lack of job tenure, and/or multiple part-time or temporary jobs .
257
Income Inequality
A measure of the extent to which income in a country is unevenly distributed
258
Mandatory Time off
a provision in employment standards legislation requiring that employees be given a specified amount of time off work in a day or week
259
Class Action
a lawsuit in which a group of people join together and act as one common plaintiff on the basis that they all allege to have suffered the identical or a similar legal wrong at the hands of the came defendant. A class action must be approved by a court before it can proceed
260
Averaging Agreement
A legislative device designed to facilitate flexibility in the calculation of an employee's entitlement to overtime pay. An averaging agreement permits an employer and employee to agree to average hours worked over a period longer than the standard period of time used to calculate overtime pay entitlement.
261
"Manager" is defined as
a) a person whose principal employment responsibilities consist of supervising and/or directing humans or other resources, or;
b) a person employed in an executive capacity
262
Statutory holiday
A day designated in employment standards legislation on which employees are entitled to receive either time off with pay or a wage premium if they work
263
Statutory Vacation Time
The amount of time an employee is legally entitled to take off work during a year
264
Statutory vacation pay
The amount of pay a vacationing employee is legally entitled to receive while taking vacation time.
265
Canadian Charter of Rights and Freedoms
Purpose is to regulate government action
*the charter imposes checks and balances on what governments can and cannot do
266
Charter Challenge
A legal proceeding that alleges that government action contravenes the Charter
267
Two-step process to analyze charter challenges
1) has the government infringed a charter right or freedom?
2) if an infringement has occurred, is it justified in a free and democratic society?
268
Analogous grounds
Prohibited grounds of discrimination in equality legislation that are not enumerated (listed) in the legislation, but which the courts have read into the legislation because of their similarity to the enumerated grounds that are protected ( e.g., sexual orientation, marital status, and citizenship).
269
Oakes Test
The test applied by courts and tribunals when interpreting section 1 of the Charter. The test requires courts and tribunals to balance the interests of individual in having their Charter rights and freedoms protected against any broader social benefits that would result from allowing a restriction of a Charter right or freedom.
270
Secondary Picketing
Picketing in a labour dispute that takes place at a location other than the workplace where the workers engaged in the dispute are employed
271
Signaling Effect
a phrase used by courts to describe the psychological - perhaps unspoken - message conveyed to a person confronted by labour picketing that the picketers desire that person not to cross the picket line
272
Division of Jurisdictional Power
section 91 and 92 of the constitution
- assign areas of legislative authority to the federal and provincial legislatures
273
Section 91 of the Constitution
- federal jurisdiction
- whether an industry is properly classified as federal include those on postal service, navigation, banking, and shipping
- relevant legislation includes the Canadian Labour Code and the Canadian Health and Safety Act
274
Section 92 of the Constitution
- provincial jurisdiction
- applies to local works and undertaking
- only 8% of Canadian workers
- relevant statutes for the law of workplaces in Ontario include the Ontario Employment Act, Labour Relations Act, and Occupational Health and Safety Act
275
Of the following, which is the best definition of undue hardship?
The point at which further efforts to accommodate would impose an unnecessarily high burden upon the employer
276
What are the prohibited grounds meant to represent?
The grounds that governments have decided are unacceptable reasons for discriminating
277
What does the "make whole" remedy mean?
It means to put the victim of discrimination "back in the place" that they would have been had the discrimination not taken place
278
279
280
What was the significance of British Columbia (Public Service Employee Relations Commission) v. BCGSEU ("Meiorin")
It established that in all cases of discrimination the employer would be required to attempt an accommodation before they could claim a BFOR defence
281
Deceit (tort)
A tort in which party A makes a false statement with the intention of misleading party B; party B relies on this false statement and as a result, party B suffers a loss.
282
Negligent misrepresentation (tort)
A tort in which party A, owing a duty of care, makes an untrue statement to party B without sufficient care as to the statement's accuracy, which party B then relies upon and suffers a loss as a result
283
nuissance (tort)
A tort in which the activities of one person unreasonably interfere with the use or enjoyment of the property to another person
284
Conspiracy to injure (tort)
A tort that involves two or more people acting in combination with the intention of causing harm to another party and actually causing that harm
285
trespass on property (tort)
A tort in which one person intentionally enters another person's property without the property owner's permission; as well, it can involve a refusal to leave a property when instructed by the property owner to leave
286
Passing off (tort)
A tort that involves deceiving consumers into believing that the good, service or business of the company or person is really that of another, thereby misrepresenting the source
287
Intentional infliction of mental suffering (tort)
a tort in which a person or employer engages in outrageous harmful conduct toward another with the intention to cause harm that actually occurs
288
Assault (tort)
A tort that involves a threat of imminent physical harm
289
Battery (tort)
A tort that involves unwanted physical contact that either causes the victim harm or is offensive or insulting to the victim
290
Intimidation (tort)
A tort that involves an attempt to coerce another person to do something or refrain from doing something they are entitled to do by the threat of an unlawful act
291
Defamation (tort)
a tort that involves false statements about a person that tend to harm the person's reputation
292
Written defamation statement
libel
293
verbal defamation statement
slander
294
Intentional torts
1) intentional infliction of mental suffering
2) assault and battery
3) intimidation
4) trespassing
5) conversion
6) deceit
7) wrongful imprisonment
8) malicious prosecution
9) defamation - written or verbal
295
Justification (defamation lawsuit defence)
A defence to a defamation lawsuit based on the claim that the comments are "substantially true"
296
Qualified privilege (defamation lawsuit defence)
A defence to a defamation lawsuit based on the claim that public policy supports frank and honest opinions in the circumstances, and the comments are made without malice
297
Inducing breach of contract (tort)
A tort that involved wrongful acts by a third party that are intended to cause a breach of contract between two other parties
298
Negligence (tort)
A tort that involves a non-intentional, careless, or reckless act that breaches a legally recognized duty of care and results in damage to another person
299
Duty of Care
a special close relationship between two parties that creates an obligation in tort law to take reasonable steps to avoid harming the other party
300
Standard of Care
In application of tort negligence, the level of care expected of a party that has legal duty of care to not harm others
301
Professional Negligence
the special application of the tort of negligence to professionals (i.e. doctors)
302
Contributory Negligence
A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.
303
Negligent Hiring
Claim made by an an injured party against an employer or job recruiter which occurs when an employer fails to check an employee's background and the employee injures someone on the job
304
Tortfeasor
A person who commits a tort either intentionally or unintentionally
305
Interlocutory
A temporary court order prohibiting conduct that is potentially unlawful until a decision is released by the court on whether the conduct is unlawful
306
Pecuniary Damages
Damages awarded in a tort case that are quantifiable in monetary terms (i.e., financial losses such as medical bills, lost wages, loss of future earnings, costs of future medical care)
307
Non-Pecuniary
Damages awarded in a tort for losses that are intangible or non-financial in nature, such as hurt feelings, emotional distress, or loss of employment of life
308
Punitive Damages
damages exceeding simple compensation and awarded to punish the defendant.
*torts such as intentional infliction of mental suffering and defamation can satisfy this requirement
309
Provincial Privacy Laws
-enacted by the respective government
-addresses issues that haven't traditionally been addressed in the common law
-creates a tort that enable the employee to sue their employer for alleged invasion of privacy
310
The Federal Information Protection Electronic Documents Act
Applied to the federally regulated private sector but does not apply to provincially regulated employment relationships
311
What does the term 'vicarious liability' mean?
A legal rule under which an employer is liable for damage caused to a third party by one or more of its employees
312
What process does PIPEDA set up for those who believe that their privacy rights have been violated?
They may go to a privacy commissioner who can issue recommendations but not a binding decision
313
Which of the following has NOT been recognized in Canadian law as a dimension of privacy?
Relational privacy
314
Contributory negligence
Injured party's negligence contributing to loss
315
Non-intentional torts (Negligence)
Wrongful act causing harm without intent
316
PIPEDA
Regulates collection and disclosure of personal information
317
Can the employer be held vicariously liable for the wrongful actions of its employees about which it did not give specific permission i.e., driving over the speed limit and causing an accident?
Yes. The test for vicarious liability is a substantial connection to one's work duties count even if the employer is unaware of the specific action undertaken
318
What does the tort of "intimidation" require?
A threat to do something unlawful unless someone does what you want as a result of which the "intimidated" person suffers a loss
319
What is "assault" and "battery"?
They are two separate torts, the first is threatening to cause physical harm and the second is actually causing physical harm
320
Which of the following constitutes "personal information" in the context of PIPEDA?
Any information about an identifiable person except basic "business card" information
321
What does the author suggest that future challenges in the federal sector to collection and disclosure of personal information should focus on?
the reasonableness of the requests
