EMPR exam Flashcards
3 legal regimes in Canada
1) Common law
2) Regulatory standards
3) Collective bargaining
What are the two areas comprimised in the Common Law Regime?
law of contracts and law of torts
What is the Common Law Regime
- 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
What is Common Law?
A system of judge-made rules originating in England and inherited by Canada → uses a precedent-based approach to case law
What is a contract?
A legally binding agreement in which 2 or more parties make promises to provide benefits to one another
What is an employment contract?
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
What is a Tort?
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
What is the Regulatory Regime?
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
Freedom of Contract
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)
Breach of contract
Occurs when a party to a contract violates one or more terms of a legally binding contract
remedy
Means by which a court or tribunal enforces its decision (punishment)
Binding precedent
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
statute
A law or legislation produced by a government that includes rules that regulate the conduct of business and people (ex. Employment Standards Act 2000)
2 remedies for tort violation
1) Monetary damages
2) Injunction
Injunction
A legal order issued by a judge prohibiting a person from engaging in a particular course of action
3 levels of Canadian Courts
1) Supreme Court of Canada
2) Courts of Appeal
3) Courts of First Instance
Inferior Court of First Instance in Ontario
Ontario Court of Justice
Appointed by Province
Superior Court of First Instance in Ontario
Superior Court of Justice
Appointed by federal government
regulations
Government-made rules introduced as supplement to, and pursuant to authority created in a statute
Protective standards regulation
Government regulation designed primarily to protect employees by imposing mandatory standards, such as minimum contract requirements and safety rules
Expert administrative tribunals
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
Judicial review
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
Collective bargaining regime
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
strike
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)
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
Collective agrement
A contract between an employer an a trade union that sets out the conditions of employment for a group of employees
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
Labour arbitrator
An individual or 3-person expert arbitration panel appointed to decide disputes over the application and interpretation of collective agreements
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
subsystem in a legal society
a self-contained system within the broader social system that possesses its own rules, norms, and modes of communication
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
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
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
Spillover effect (of collective bargaining)
The effects that collective agreement settlements bargained by unions and employers have on individual employment
Union avoidance
A management strategy designed to reduce the risks that employees will join unions
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
cartel
A combination of individuals or companies that attempt to use collective force or coordination to fix market prices
Equilibrium wage rate
A theoretical wage rate fixed through market forces in which the supply of labour equals the demand for labour
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
Independent contractor
A worker who is in business for themself and who therefore is not an employee
employee
A worker who is in a position of subordination to an employer and subject to rules set out in an employment contract
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
Commercial contract
A contract between two businesses, including a business in the form of an independent contractor
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
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
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
Own account self-employed workers
Independent contractors who have no employees
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
What covers the terms and conditions of employment in a unionized workplace
Collective agreement
What covers the terms and conditions of employment in a non-unionized workplace
employment contract
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
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
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
Dispute resolution process in a non-unionized workplace
the employee or employer attends the court or in specific areas such as human rights, tribunals
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
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
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
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
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
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
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
What are workplace norms?
Unwritten rules about how people can expect to act and be treated in the workplace.
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?
What is the principle characteristic of a dependent contractor?
They work exclusively or almost exclusively for one company
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.
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
Types of subsystems
Social, cultural, religious, political, legal, economic
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
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?
Subjective test
a legal test used in the interpretation of contracts and statutes that asks, “What was this person actually thinking at the time?”
Mutual consideration
The contract must provide something of value to both the employer and the employee that they would otherwise not receive
Voidable contract
A contract that may be declared void at the option of one of the parties due to a deficiency
Contract modification
A change to one or more terms of the contract during the term of the contract
forbearance
A promise by one party in a contract to another party to refrain from exercising a contractual right for a period of time
Expressed contract terms
contract terms
terms of a contract that the parties have explicitly agreed to, either orally or in writing
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
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
Ambiguous contract term
A contract term capable of multiple interpretations
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
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
2 most commonly litigated expressed contract terms
1) Restrictive covenant clauses
2) Termination of contract clauses
Restrictive covenant
a contract term that restricts the right of a former employee to engage in certain competitive practices against their former employe
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”
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
Public policy illegality
A common law right of judges to void all or part of a contract because it is contrary to public policy
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”
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
Fixed-term contract
A contract with a specified end date
Fixed-task contract
A contract to perform a defined task that comes to an end when the task is complete
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
Mandatory retirement
A legal rule in a statute or contract that terminates an employment contract upon the employee reaching a specified age
Indefinite-term contract
A contract that has no specified end date
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”
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
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
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
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
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
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
Contract term implied “in fact”
A term implied into a contract by a judge that reflects the presumed intentions of the parties
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
Summary dismissal
Termination of an employment contract by an employer without notice to the employee in response to a serious breach of contract
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
demotion
A reassignment of an employee’s position by an employer to another position with lower pay, less prestige, or less responsibility
Constructive dismissal
A fundamental change to an employment contract by an employer that an employee may treat as an effective termination of contract
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
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
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
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
Quantum meruit
An entitlement to be paid a fair market rate for work performed when the amount is not stipulated in a contract
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)
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
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
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
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.
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)
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
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
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)
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.
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”)
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
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
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
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
What is “insubordination” in the context of the employment contract?
The refusal to follow the employer’s lawful work orders
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
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
