Midterm Flashcards
What was significant about the Meiorin case?
Court said work is one of the most fundamental aspects of a person’s life, contributory role in society, means of supporting self, identity, has significant impact on identity.
What is statute law?
authored by parliament and legislatures
Regulations are attached to statutes
What is type of law is the Canadian Charter of Rights and Freedoms? Every law must follow this.
Constitutional law
What is a law based on written decisions of judges?
Common law
These are the steps involved in what?
First reading: introduction by Cabinet minister
Second reading: debate of the bill in principle leading to a legislative vote
If it passes, a legislative committee discusses it clause by clause
Third reading: final vote by legislature
Royal assent: upon signature by the lieutenant governor, the bill becomes a statute
Making a statute law - public bills
Together statutes and regulations are called ____________.
Legislation
Statutes contain _________________________.
The main requirements of the law.
Regulations contain _______________________.
the detailed requirements of the law and can be changed without amending the statute
What 3 factors are included when discussing jurisdiction?
Who can adjudicate
The issues that can be adjudicated
The areas it covers
What is the mischief rule?
When debating between considering personnel as employees vs independent contractors, the law should lean toward classification as an employee.
What 3 levels of government have the authority to pass legislation?
- Federal
- Provincial
- Municipal (bylaws)
This law only applies where there is an element of government activity.
Canadian Charter of Rights and Freedoms
________________ has supreme law.
Canadian Charter of Rights and Freedoms
What law was passed in 1982?
Canadian Charter of Rights and Freedoms
What fundamental rights does the Canadian Charter of Rights and Freedoms protect?
- Freedom of association
- Speech
- Religion
- Right to counsel
- Presumption of innocence
- Equality
- Language rights
- Aboriginal rights
The ______________ sets out minimum rights and standards for employees, including minimum wages, overtime, hours of work, termination notice/pay, pregnancy and parental leave, vacation, and stat holidays.
BC Employment Standards Act
The ______________ is aimed at promoting equity, and preventing and remedying discrimination and harassment based on specified prohibited grounds.
BC Human Rights Code
The __________ deals with the right of employees to unionize and the collective bargaining process.
BC Labour Relations Code
The _____________ outlines requirements and responsibilities for creating a safe workplace and preventing workplace injuries and accidents.
BC Occupational Health and Safety Regulation
The _____________ provides no-fault insurance plans to compensate workers for work-related injuries and diseases. They also allow employers to limit their financial exposure to the costs of workplace accidents through a collective funding system.
BC Workers Compensation Act
The ______________ establishes rules for private sector employers about the collection, use, and disclosure of employee information.
BC Personal Information Protection Act
The ____________ covers employment standards, collective bargaining, and health and safety for federal employees and federally regulated companies, such as banks or airlines.
Canada Labour Code
The ____________ covers human rights and pay equity for federal employees and federally regulated companies.
Canadian Human Rights Act
This statute applies to federally and provincially regulated industries and provides qualifying employees with pension benefits on retirement and permanent disability.
Canada Pension Plan
This statute applies to federally and provincially regulated industries and provides qualifying employees with income replacement during periods of temporary unemployment.
Employment Insurance Act
What two types of common law can be related to employment?
- Contract law
2. Tort law
Suing for wrongful dismissal is an example of _______ law in effect.
Common law
Suing for defamation, negligence, or assault is an example of ______ law in effect.
Tort law
What is important about the Vriend v Alberta case?
Supreme Court read into a human rights law a category of people (based on sexual orientation) that a provincial legislature had previously excluded, and this was applied to other provinces as well - sexual orientation had to be included in provincial human rights legislation.
What is important about the M v H case?
Supreme Court found that the definition of spouse discriminated against same-sex partners and violated their equality rights.
The Supreme Court of Canada set out a three-part test for determining when a law that limits a Charter right is a reasonable limit and therefore saved by section 1 during the watershed case of _________.
R v Oakes
Describe Section 33 of the Charter and give an example.
Allows a potential limit on rights and freedoms
The Notwithstanding Clause
Must be renewed every 5 years
e.g. Quebec requiring all signs to be in French
The principle ______________ means “to stand by things decided”, which is binding, persuasive, and distinguishable, and helps lawyers predict the outcome of a case based on the existing body of case law.
Stare decisis
__________ are default or mandatory rules that the courts assume are part of an employment agreement, even if they haven’t be expressly included in the employment contract.
Implied terms
____________ is a simple term for serious misconduct in the workplace.
Just cause
True or False:
Tort law exists independent of any contractual relationship between people or companies.
True
What are the 2 pillars of individual employment law?
- Common law
2. Employment related legislation
List 5 areas of common law liability.
- Misrepresentation by job candidates
- Negligent Misrepresentation - Wrongful Hiring
- Inducement - Aggressive Recruiting
- Restrictive Covenants
- Anticipatory Breach of Contract
- Negligent Hiring - Background Checking
______________ describes the level of diligence that is reasonable under the circumstances.
Reasonable care
What is Administrative law?
The body of law that regulates the operation and procedures of government agencies.
__________________ have been established to make decisions in specialized areas of law, such as employment standards or discrimination.
Administrative law tribunals
The tribunal associated with the Employment Standards Act is called the _____________.
Employment Standards Branch
The tribunal associated with the Human Rights code is called the ____________.
Human Rights Tribunal
The tribunal associated with the Labour Relations Code is the ___________.
Labour Relations Board
_____________ is the case that determined a limitation of a Charter right is justifiable if:
- the means are proportional in that they are rationally connected to the objective
- they impair the right or freedom as little as possible (minimal impairment
- the benefits of the limit outweigh its harmful effects
R v Oakes
What tribunal is associated with the Workers Compensation act and the Occupational Health and Safety Regulation?
Workers Compensation Appeal Tribunal by way of WorkSafeBC
What tribunal is associated with the Personal Information Protection Act?
Office of the Information and Privacy Commissioner
What 3 factors must be present for the Charter to apply?
- there must be a relationship between government and the people
- when there is government action
- when the law in question does not use the section 33 notwithstanding clause
True or False
There are no limits to the protection of the Charter of Rights and Freedoms.
False: there are reasonable limits to the protection of the Charter, see Section 33 the Notwithstanding Clause
True or False
The Civil Resolution Tribunal Act is done almost entirely online.
True
What section of the Charter most often arises in an employment law context?
Section 15, equality rights.
What 4 factors must be in place for there to be legitimate discrimination in the workplace as it applies to the Human Rights Code?
- employee must have a characteristic or perceived characteristic that is protected under the Code
- employer’s conduct must have an adverse impact on the employee
- the ground of the discrimination must be a factor in the adverse impact
- the conduct must not be due to a bona fide requirement (occupational, scheme based on seniority, retirement pension or insurance plan)
True or False:
Statute law in Canada is based on Parliamentary Supremacy, based on the Romans.
False: it was based on the English, who brought parliamentary supremacy to Canada
Name the 5 different types of employee.
- Permanent full time
- Permanent part time
- Temporary
- Casual
- Agency employees (temps)
________________ is a promise not to engage in certain types of activities during or after employment.
Restrictive covenant
An overly zealous search firm recruiter promises a job candidate annual pay raises of 20 percent, but the employer ends up not providing this. What is this an example of?
Negligent misrepresentation by the employer.
An employee working at Firm A is repeatedly approached by a recruiter at Firm B, who offers a promotion and salary increase upon hiring. After 2 months of being contacted weekly, the employee leaves Firm A and signs on with Firm B. Unfortunately, the job promotion turns out to be a lateral move and although base salary is increased, commission caps leave the employee with the same income as at Firm A. This is an example of: A. Negligent misrepresentation B. Anticipatory breach of contract C. Negligent hiring D. Aggressive recruiting
D. Aggressive recruiting
True or False:
The cost of a bad hire includes the potential liability for negligent hiring if that employee later causes foreseeable harm to a third party.
True
What happens if a court or tribunal finds that a contractor is actually in an employer-employee relationship?
The employer may have to remit thousands of dollars to various government agencies for outstanding statutory premium, even those usually paid for by the employee. May also pay penalty or interest charges. May also have to pay the employee costs for benefits. Employee will be liable for outstanding stat premiums and income tax not deducted at source.
True or False:
When determining if there is an employee-employer relationship, the control test refers to the locus of control the employee feels at work.
False: refers to whether the organization controls the individuals work, including where, when, and how it is performed
An individual at work faces the risk of not receiving payment for services performed. They also have expenses that are not covered by the employer. This person is most likely a _______ according to the risk test:
A. Employee
B. Contractor
B. Contractor
When determining if there is an employee-employer relationship, the _____________ test refers to whether the services rendered by the individual is an integral part of business.
Organization test
An individual at work brings his own tools to the job site. He is likely to be a:
A. Contractor
B. Employee
A. Contractor
What are 3 advantages of having a written employment contract?
- Reduces risk of misunderstandings
- Address potentially contentious issues early
- Reduces uncertainty (i.e. how are sales commissions calculated)
True or False:
Employers have an implied duty to provide employees with the tools and training necessary to do the job properly and provide a safe workplace that is also free from harassment.
True
What 4 aspects are commonly included in a well written employment contract?
- Job Description
- Remuneration
- Term
- Termination
What does the duty to mitigate mean?
A dismissed employee has a duty to look for a job that is comparable to the one from which they were dismissed during the common law reasonable notice period in the case of wrongful dismissal. If successful, earnings from the new job will reduce any wrongful dismissal damages owed by the employer.
True or False:
The contra proferentem rule refers to ruling ambiguous interpretations in favour of the employee, because the employer is typically at an advantage.
True
True or False:
The tests to justify dismissing an employee during the probationary period were set during the Vancity Credit Union v Higginson case.
False: The Rocky Credit Union v Higginson case
The following terms relate to the test of what?
- employee has a reasonable chance to show they are suitable for the position, based on employer standards of hiring
- employer found employee to be unsuitable
- employers decision is based on an honest, fair, and reasonable assessment of suitability,
Test to justify dismissing an employee during probationary period.
What is consideration?
Something of value that each party exchanges in an employment contract
List 5 common, enforceable problems with employment contracts.
- Lack of consideration
- Inequality of bargaining power
- Obsolescence
- Failure to meet minimum statutory standards
- Use of ambiguous language`
The following terms should be included in a well written _________________.
- Probationary period
- Relocation
- Benefits
- Restrictive covenants
- Ownership of intellectual property
- Choice of law
- Corporate policies
- Entire agreement clause
- Inducement
- Independent legal advice
- Severability Clause
- Golden Parachute
- Implied duty to maintain confidentiality
Employment contract
__________________ sets out minimum terms and conditions of work, including hours, overtime, stat holidays, vacation time and pay, mat/pregnancy/parental leave, termination notice/pay.
Employment standards legislation
Name 2 requirements of employers by the ESA.
- Record keeping: must keep accurate records about employees for at least 2 years after employment ends
- Wages: must be regularly paid by cash, cheque, draft, money order, or direct deposit; no partial pay, must pay last wages within a certain time frame
Name the 3 main restrictive covenants.
- Non-disclosure
- Non-solicitation
- Non-competition
What type of restrictive covenant do the courts take most seriously and why?
Non-competition, because they prevent former employees from working in an area for a fixed time and are considered a restraint of trade
What 3 things does an employer have to prove for non-competition clause to be valid in the eyes of the court?
- Clause is necessary to protect legitimate business interests
- Clause covers a reasonable length of time and geographic area
- A non-solicitation clause would not be sufficient protection
The ____________ clause specifies the jurisdiction whose laws govern the contract.
Choice of law
An employer should include _____________ in the employment contract when new employees need to be contractually bound by its general policies.
Corporate policies
This clause states that the signed contract constitutes the entire agreement between parties, and excludes previous conversations, negotiations, and promises made during the hiring process.
Entire-agreement clause
This clause addresses whether the employee’s service with a previous employer is recognized by the contracting employer for severance purposes, in case the employee was induced to leave secure employment.
Inducement clause
This clause provides that if a court invalidates part of the employment contract, it will not affect the validity of the remainder of the agreement.
Severability clause
This clause is included in executive employment contracts to provide substantial economic compensation in the event that an executive’s employment is terminated under certain circumstances. It lets the executive act in the interest of the employer during the transitional period without being distracted by personal effects.
Golden parachute
An employment contract has a fiduciary nature. What does this mean?
There is implied duty for certain things that are a given when it comes to the contract i.e. to maintain confidentiality, even if it is not expressly written in the contract.
Under what 5 conditions can an employment contract be challenged?
- Lack of consideration
- Inequality of bargaining power
- Obsolescence
- Failure to meet minimum statutory standards
- Use of ambiguous language- contra proferentem
What exemptions do unionized employees have under the ESA?
- Most minimum standards do not apply (hours of work)
- Must follow grievance procedure in collective agreement, rather than filing complaints with the Employment Standards Branch
These 5 types of people are excluded from consideration from what legislation?
- Members of professional associations
- People receiving EI while doing job creation projects
- High school kids doing work experience
- People receiving IA while doing work experience
- People doing Youth Community Action program working for financial credit to post-secondary.
ESA
An employer can only withhold or deduct wages from an employee in what 4 instances?
- required by state (income tax, CPP, EI)
- required by court order (child support)
- collective agreement
- authorized in writing by employee
How long is pregnancy leave?
17 weeks
How long is parental leave?
37 weeks
How long is family responsibility leave?
5 days
How long is bereavement leave?
3 days
How long is compassionate care leave
8 weeks in a 26 week period
What 6 rights is an employee on leave entitled to?
- Reinstatement
- Salary plus increases
- Retain benefits
- Vacation
- Free of reprisals
- Accrue seniority
What are 2 circumstances in which there is a time limit for making a claim to the Employment Standards Branch?
- 6 months after last day for anything relating to employer obligations
- 6 months after date of contravention for issues like hiring process, misrepresentation, type of work, wages, conditions of employment
