Midterm Review Flashcards
Possible reasons for Lawful contract termination
- agreement of parties
- frustration of contract
- employer terminates with “reasonable notice”
- the employer terminates for cause
- the special case of constructive dismissal
- the employee terminates with notice
frustration of contract
an unforeseeable event makes the performance of the contract impossible, instantly terminates the contract
Example, death
3 branches of governmnet
Executive branch
Legislative
Judicial Branch
executive branch
- consists of the prime minister and his cabinet
- head of state
- the members of the executive branch are the decisions makers of parliment
- make sure laws are obeyed
Legislative branch
includes the house of commons, the senate and the queen who is represented by the Governor General
-Decide what is legal
-Create laws
memebers of senate are appointed through advice of PM
House of commons
- made up of members of parliament representing their riding
- where laws are formed
- made up of commoners from all over Canadas
Judicial Branch
Decide if laws are constitutional
judges decide what the meaning of laws are
-resolve disputes
Section 91 of the constitution states
Grants federal government jurisdiction over a variety of matters and industries which are relevant to the law of work
Section 91 also grants the federal government jurisdiction to make laws of POGG Power (for the peace, order, and good government of Canada)
Section 91 of the constitution covers:
- regulation of trade and commerce
- unemployment insurance
- postal services
- military, defence and naval services
- navigation and shipping
- banking, incorporation of banks, issue of paper money
- bankruptcy and insolvency
- patents and copyrights
- criminal law
Charter of Rights and freedoms
the chartercame into effect in 1982, is part of the constitution act and its purpose is to regulate governmnet action
-governmnats must consider the charter when they are proposing and drafting new laws
Section 92 of the Constitution states
- Companies that operate multiple provinces are legislated by the federal government, even if companies only do it occasionally it falls under this act if it is “regular and continuous”
statute
a bill passed by provincial or federal government.
a statute may grant a right to create regulations of how the law will actually function and who it will and will not cover
-regulates the conduct of people and business
Expert administrative tribunals
Decision making bodies created by government statute and given responsibility for interpreting and enforcing regulations
Government statutes are enforced and administrated by an army of inspectors, investigators, mediators, expert administrative tribunals when parties cannot resolve a complaint voluntarily it may end up before an expert administrative tribunal.
-tribunals are staffed by a small army of administrators, mediators and lawyers
Constitution act of 1867
defines the operations of the government of Canada. including federal structure. contracts the house of commons, the senate, justice of peace and tax system.
protection from discrimination by government
if a law is discriminatory, the government has to prove it is reasonable and demonstrate this using the Oakes test. if it is not reasonable the law may be stuck down
example of protection of the charter
- human rights act: covers freedom of religion, freedom of expression, freedom of association
- fundamental freedoms
- mobility rights
- equality rights
- freedom of association
limitations of the charter
section 33, if the law is struck down with the notwithstanding clause: it allows governments temporaily oride certain charter rights.
paramouncy
where there is a concurrent federal and provincial law. provincial governmnet will be stuck down
most admistrative boards are monitored through
adminstration boardssuhc as -employmnet standards board -alberta labour boards -human rights board appealing these boards is very diffucult
juristiction
which governmnet had power the makelaws (Federal/provincial)
concurrent juristoction
where 2 or more courts have juristiction over a specific case
common law
-precendt based courts
judge made laws inherited drom england
civil lawsuite
court based process where person A can seek to hold person B liable for spme type of harm or wrongful act
limitation period
the amount of timne before a drop dead date in a period to seak legal action
mutual consideration
something of value to noth parties
parole evidence
introdcution of prior evidence during previous negotiations or agreemnets that contractidct contractual terms
procedural law
law of how to do someting
-the procedures that must be followed
example, how to file a compolaint
substansive law
covers rights and obligations
definaition of an employee
worker who must comply to subordination, suject to rules and entitlemets set out in a contract that declares the exchange of labour for payment
definition of independent contractor
worker who is in business for himself
reasons hwy its imporant to know the difference between an employee and independant contractor
- vicarious libaility
- occupational health and safty
- employmnet standards
- duties of the employer under the acts
tests used by courts to determine whether the wokrer is an indepednat contractor or employee
the fourfold test
this includes: ownership of tools test control test risk of loss chance of profit test
tools test
were the tools supplied by the employer or independat contractor
risk of loss and chance of profi
does the woorker have financial investmnets in the work?
employmnet contracts rules of interpretation
within a written agreemnet the court must stay within the 4 corners of the contract , no parole evidence can be used
issues that effect enforcibility of a contract
- lack of cpacity
- objective test- intent to enter
- lack of mutual consideration
- no acceptance
ambiguity in contract
when there is ambigouity in a contract the courts hold favour to the party who didnt write the contract
the employee gets the benefit in employmnet contracts
restrictive covenants include
non solicitation
non competition
fiduciary duty
non disclosure
non disclosure clause
A Non-Disclosure Agreement, or NDA, is a contract that protects someone’s private and proprietary information from being shared with anyone who should not have access it.
non competititon clause
prevents a worker from working in the same industry as a competitor with the employer
fiduciary duty
level of trust between the employer and the employee.
example, you are not to take anything from the employer and use it for your own benefit
duty to accomidate
legal requirmnet in human righst law to take steps to remove discrimatory barriers to employmnet
-altering scheduels, rules, work patterns
due diligence
reasonable steps taken to prevent/satisfy legal requirmnets
bonafide occupational requirments
a defence that permits discrimation based on honest restrictions that is required for legit business reasons
-moiren case of the female firefighter that did not meet physicial requiremnets
bonafide occupational requiremnts 3 part test
- the employer adopted the standard for a purpose
- the employer adopted the standards in a honest and good faith belief
- the tandard is a reasonable necessary and cannot addapt without undue hardship to the employer
employmnet equity
redress historical discriminatino giving preference in hiring to women, visible minorities, aboriginals, people with disabilities
employmnet equity
redress historical discriminatino giving preference in hiring to women, visible minorities, aboriginals, people with disabilities
employmnet standards act
-sets the standards for minimum wages, hours of work, time off and righst of employees child wokrers and maternity leave
contains minimum floor standards for workplaces
occupational health and safety
rules and standards for health, safety and wellness in wokrplaces
enforced through inspections, investigations
applies to all workers not just employees
requires employers to do everything they possibly can to protect the health and saftey of employers
human rights act
prohibits discrimination on grounds of race, gender, sex, religion , gender expression, age , disability etc.
ensures equal opportunity to victims of discrimination
human rights act
prohibits discrimination on grounds of race, gender, sex, religion , gender expression, age , disability etc.
ensures equal opportunity to victims of discrimination
labour relations code
The Code outlines the rights and responsibilities of employers, trade unions and employees in labour relations. In Alberta, the Code guarantees that employees have the right to collective bargaining with employers
-allegations of unfair labour are investigated
workers comp
Workers’ compensation is a liability and disability insurance system under the Alberta Workers’ Compensation Act.
non-disclosure
prevents a former employee from disclosing information that has proprietary value to the employer
restrictive covenenat
a contract term that restricts the right of a former employee to engage in certain competitive practices against his or her former employee
ancillary documents
written materials that are physically seperate from an employee contrcat but that inlcude to the employmnet relationship
example, handbooks, brochure, human resource policy manuals
the right to refuse dangerous work is under which act
occupational health and safety act
the Supreme Court has created a two step process to analyze charter challenges
- has governmnet infringed a chaste right of freedom?
2. if an infringement exist, is it justified in a free and democratic society
What Rights and Freedoms in the Charter Are Important to the Law of Work
The sections of the Charter that are most important to the law of work•Guarantee of rights and freedoms
•Fundamental freedoms
•Mobility rights
•Equality rights
what does the charter govern
The Charter applies only to government action•Its purpose is to regulate the relationship between governments and citizens•Governments act by:
- Enacting and administering laws and regulations
- Acting in the capacity of the employer of their own employees
The Charter and the regulatory standards regime
The Charter and the regulatory standards regime•Section 15, the equality rights provision, states that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination
the Oakes test
applies to the charter
judges the benefit of the violation on society
2 part test
1. pressing and substancial concern test
-must relate to a pressing and substance concern and must prove the actions were taken to address a public concern
2. proportionality test
does this violation outweigh the harm of having his or her charter violated
not withstanding clause
basically an override of rights in the charter
ex, Doug Ford slashing seats before election
notwithstanding word definition
regardless
who does the charter of rights and freedoms govern?
charter only applies to gov. actin and regulates the relationship between government and citizen not between private companies and private citizens
purpose of the charter
regulate government action
The Charter restrains government in terms of the regulation of work and influences the development of the common law regime and the regulatory standards regime
challenges of the charter
- has government infringed on rights and freedoms?
2. if yes, is it justified in a free and democratic society?
what rights and freedoms are important to the law of work?
guarantee of rights and freedoms
right of association
mobility rights
fundamental freedoms
regulatory standards regime
every individual is equal in and under the law and has equal protection and equal benefit under the law
most employmnet regulations are under
common law regime
purpose of regulatory standards regime
The objective of the regulatory standards regime is to ensure that no workers are offered, accept, or work under conditions that are not “decent”
employees that fall under federal government employees
Employees of the federal government2.Employed by an employer that operates in an industry that is specifically assigned to federal jurisdiction by the Constitution3.Employed by a company whose ordinary business is to provide a “vital” or “integral” service to a federally regulated business
constructive dismissal
when the employee quits based on the employer creating a hostile wokr enviroment
may sue for breach of contract
summary dismissal
when an employee is fired without notice due to just cause
at will employee
a term in the US labour law within a contract that states the employer can be fired at any time, without just cause and without warning
alberta standards legislation
minimum wage 15$
Employees must work for one year before they’re entitled to vacation time
2 weeks with pay after each of the first 4 years of employment
An employee may work a maximum of 12-hours a day unless an exception occurs.
Employees are entitled to at least 30 minutes of rest (break) during every 5-hour work period.
Employees are entitled to at least one day of rest each workweek.
