MIDTERMS REVIEWER Flashcards
Judge-made law that has evolved over time
Common law
Remedy for Common Laws
Damages $$$
A wrong for which one party can recover damages from another party for the harm caused
Eg. defamation
Tort law
Has a wide range of remedies and covers ESA, OHRC, OHSA, etc.
Statute law
It is made when the legislative body with authority over a given area, passes legislation.
Statute law
TRUE OR FALSE: The Ontario Human Rights Code is a judge-made law.
False - it is a statute, a legislation passed by the government
2 distinct sources of Employment Law
1) Common Law
2) Statute Law
2 key branches of Common Law
1) Contract Law
2) Tort Law
A largely symbolic process through which the “Crown” or his or her representative formally approves a new law passed by a Canadian Parliament.
Royal Assent
A bill introduced in the legislature by the Cabinet minister who is responsible for the relevant subject matter.
Public bill
A bill that may deal with matters of public importance but is put forward by a private member of a legislature.
Private member’s bill
A bill that cover non-public matters such as changing corporate charters and has limited scope.
Private bill
Individual employment agreement.
Eg. breach of contract law
Contract law
An area of civil law that governs agreements between people or companies to purchase or provide goods or services.
Contract law
Very serious employee misconduct or incompetence that warrants dismissal without notice.
Just cause
Losses suffered as a result of the other party’s actions.
Damages
The party that brings an action.
Plaintiff
The party against which an action is brought.
Defendant
A wrong for which one party can recover damages from another party for the harm caused.
Eg. defamation
Tort law
Law that relates to private, non-criminal matters, such as property law, family law, and tort law.
Civil law
Have been established to make decisions in specialized areas such as employment standards or discrimination.
Administrative tribunals
It is placed below tribunals and is staffed with inspectors or officers empowered to investigate complaints, make rulings, and sometimes issue orders.
Administrative agencies
Dismissal without cause by an employer without adequate notice or termination pay.
Wrongful dismissal
TRUE OR FALSE: Lower courts must follow the decisions of higher courts where the legal issues are the same.
True
Burden is on party bringing the action to prove his/her case against the defendant employer on a “balance of probabilities”.
Civil case (non-criminal)
Burden is on the “Crown” to prove accused’s guilt “beyond a reasonable doubt”.
Criminal case
4 factors driving changes in employment law
1) Demographic shifts
2) Changing societal values
3) Changes in government
4) Other pressures
3 main levels of government
1) Municipalities
2) Federal
3) Provincial
TRUE OR FALSE: Municipalities do not pass employment related statutes although by-laws may affect the workplace.
True
10% of employees are covered by this law.
Federal Employment Law
90% of employees are covered by this law.
Provincial Employment Law
They are as binding as statutes even though they are passed by a government committee, internally, and do not go through a debate in the legislature.
Regulations
A legal decision that acts as a guide in subsequent cases.
Precedent
A common law principle that requires lower courts to follow precedents emanating from higher courts in the same jurisdiction.
Stare Decicis
Means “to stand by things decided”.
Stare Decicis
Term used for a precedent from a higher court that a lower court decides not to follow, usually because the facts in the case differ.
Distinguishable
The factual basis on which a legal claim can be made.
Cause of action
TRUE OR FALSE: The Canadian Charter of Rights and Freedoms is a constitutional law.
True
TRUE OR FALSE: For unionized workplaces, disputes are heard by arbitrators under the collective agreement’s grievance procedure.
True
It is part of Canada’s constitution and only applies to government actions.
Canadian Charter of Rights and Freedoms
TRUE OR FALSE: The Charter of Rights and Freedoms applies even without the involvement of government action.
False
2 clauses which rights are subject to.
1) Reasonable limits clause
2) Notwithstanding clause
2 tests of equality.
1) If it relates to a prohibited ground
2) if it perpetuates a historical disadvantage or stereotype
5 key social areas that is covered by Ontario’s Human Rights Code.
1) Employment
2) Housing
3) Contracts
4) Goods and services
5) Vocational associations
What is not included in the prohibited grounds?
Union affiliation, economic status, political convictions, physical appearance.
A prohibited ground that is not a defined ground but can often be related to other grounds such as color or ethnic origin.
Race
A prohibited ground that refers to skin color.
Color
A prohibited ground referring to family descent and is closely related to place of origin.
Ancestry
A prohibited ground referring to a country or region of birth.
Place of origin
A prohibited ground that has a more cultural component than ancestry.
Ethnic origin
A prohibited ground referring to discrimination on the basis of permanent residency, refugee, or temporary residency.
Citizenship
A prohibited ground referring to religion or faith, or lack thereof.
Creed
A prohibited ground referring to male, female, and pregnancy.
Sex
A prohibited ground referring to a person’s sexuality and includes lesbian, gay, bisexual, and heterosexual people.
Sexual orientation
A prohibited ground referring to a person’s intrinsic sense of self, especially with respect to their sense of being a woman, a man, both, neither, or falling anywhere along the gender spectrum.
Gender identity
A prohibited ground referring to how a person publicly represents their gender. This includes a person’s behaviour and outward appearance, such as dress, hair, body language, and voice.
Gender expression
A prohibited ground referring to employees 18 years and older.
Age - someone under 18 cannot make an
age-based application related to employment
A prohibited ground referring to provincial offences or pardoned federal offences.
Record of offences - it is legal to discriminate on the basis of a criminal offence for which no pardon has been obtained
A prohibited ground referring to a person’s being married, single, widowed, divorced, separated, or living in a common law relationship.
Marital status
A prohibited ground referring to the status of being in a parent and child relationship including adopted children, stepchildren, and foster children.
Family status
A prohibited ground referring to physical/mental disabilities, substance dependency/abuse, and any WSIB claims.
Disability
Occurs when an individual is being discriminated against because of her relationship with people identified by a prohibited ground.
Discrimination because of association
Occurs when an employer who retaliates against someone for asserting his rights or for refusing to discriminate against another person on the basis of a prohibited ground.
Discrimination through reprisal
TRUE OR FALSE: “Are you 18 years of age or
older?” is an acceptable interview question.
True
TRUE OR FALSE: “What is your relationship with the person to be notified in
case of emergency?” is an acceptable interview question.
False
2 types of discrimination
1) Direct discrimination (intentional)
2) Indirect discrimination (adverse impact or constructive)
3 tests of prima facie discrimination
1) Is it covered by a protected ground?
2) Did the person experience a negative result?
3) Were the two connected?
Employers’ obligation to accommodate individuals who are denied a benefit or suffer a detriment based on a prohibited ground of discrimination.
Duty to Accommodate
TRUE OR FALSE: Obligation to accommodate is up to the point of undue hardship based on costs and health and safety concerns.
True
A reasonably necessary qualification or requirement imposed in a sincere belief that it is related to job performance.
Bona Fide Occupational Requirement (BFOR)
3 requirements of BFOR
Meiorin Test:
1) Rationally connected to the job
2) Adopted in an honest belief that the requirement is necessary to satisfy a legitimate business purpose
3) Reasonably necessary to accomplish that purpose
TRUE OR FALSE: Human Rights requirements must be considered during recruitment.
False - even before recruitment begins
TRUE OR FALSE: The Ontario Human Rights Code applies to both the private and the public sector and to the conduct of individuals.
True
If a job duty or requirement touches on a disability, it can only be considered if it is _______.
Essential
A non-profit social, religious, or other organization that serves the interests of a group that is protected under the Human Rights Code.
Special Service Organization
Often the first step in the hiring process and its objective is to obtain the best candidate in relation to knowledge, skills, abilities, and behavior.
Advertising
TRUE OR FALSE: The employer may broaden questions asked to cover allowed “exceptions” such as citizenship for a top executive.
True
It is when the position is offered but subject to certain conditions. Until those conditions have been met, no employment contract exists.
Conditional offer
5 statutory exemptions
1) Special Service Organizations
2) Bona Fide Occupational Requirement
3) Nepotism Policies
4) Medical or Personal Attendants
5) Special (Affirmative Action) Programs
An exemption that allow the employer to discriminate either in favor of or against specified close relatives of employees.
Nepotism Policy
An exemption where a person may refuse to employ someone on the basis of any of the prohibited grounds where the primary duty of the job is attending to the medical or personal needs of the person or to those of an ill child or an aged, infirm, or ill spouse, same-sex partner, or relative of the person.
Medical or Personal Attendants
An exemption where an employer may implement a special program to relieve or promote the status of disadvantaged groups or persons to help them achieve equal opportunity.
Special (Affirmative Action) Programs
4 ways to limit the potential for human rights problems arising from interview.
1) Accommodate disabilities
2) Have a standard set of questions
3) Use interview teams
4) Beware of prohibited grounds
7 areas of Common Law liability
1) Misrepresentation by job candidates
2) Negligent misrepresentation
3) Inducement: agressive recruiting
4) Restrictive covenant
5) Anticipatory breach of contract
6) Inducing breach of contract
7) Background checking: negligent hiring
A clause on a job application form that states that the information provided is true and complete to the applicant’s knowledge.
Attestation clause
Occur when an employee is lured from her current position through aggressive recruiting or inflated promises.
Inducement/allurement/enticement
A promise not to engage in certain types of activities during or after employment—that might affect her ability to perform the new job.
Restrictive covenant
Seen as a “restraint of trade” and are enforceable only if they are reasonable in the circumstances.
Restrictive covenant
This clause states that the signed contract constitutes the entire agreement between the parties. Previous conversations, negotiations, and promises that may have been made during the hiring process are not binding on either party.
Entire agreement 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. An unenforceable clause will simply be severed from the rest of the agreement.
Severability clause
Protects employer confidential information from disclosure during or after employment.
Non-disclosure clause
Promise not to solicit clients or even fellow employees if you leave employment.
Non-solicitation clause
Promise not to compete with former employer within certain time period and geographic area.
Non-competition clause
Occurs when one party rejects the employment contract—through either its statements or its conduct—after the offer of employment is accepted but before employment begins.
Anticipatory breach of contract
To be successful in an action for anticipatory breach of contract, the hired employee
must show that:
1) An offer of employment was made
2) The offer was accepted
3) The contract was then repudiated by the employer
4) The employee suffered damages as a result
Occurs where a third party induces the breach of an existing contract between two other parties.
Inducing breach of contract
4 tests to prove inducing breach of contract.
1) Had a valid and enforceable contract with the employee
2) The new employer knew of the existence of the contract
3) The new employer intended to procure a breach of this contract
4) Former employer suffered damages
Material or suggests untrustworthiness and may justify dismissal later on.
Misrepresentation by job candidate
Occurs where employee suffers losses because of employer’s careless, false, misleading statements during the hiring process.
Negligent misrepresentation
Occurs where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth by the employer.
Fraudulent misrepresentation
Failing to take reasonable care in the hiring process that results in foreseeable injury to a third party.
Negligent hiring
The level of diligence one is expected to exercise.
Standard of care
5 employee categories.
1) Permanent full-time employees
2) Permanent part-time employees
3) Temporary employees / contract workers
4) Casual employees
5) Agency employees or temps
These employees are hired for an indefinite period—that is, with no predetermined end to the employment relationship—and usually work 35 to 40 hours per week.
Permanent full-time employees
These employees are hired for an indefinite period to work less than full-time hours
Permanent part-time employees
These employees work either full-time or part-time, but they are hired for a specific period or task rather than for an indefinite period like permanent employees.
Temporary employees / contract workers
These employees form a special category of temporary employees and work intermittently as work is offered.
Casual employees
These employees work for an employment agency at various places as arranged by the agency.
Agency employees or temps
A self-employed worker engaged by a principal to perform specific work.
Individual contractor
The party who contracts for the services of an independent contractor; the party who can be bound by its agent.
Principal
6 tests for independent contractor.
1) Degree of control
2) Ownership of tools
3) Risk of loss
4) Permanence
5) Exclusivity
6) Degree of integration
Individual who work for one organization exclusively may be entitled to wrongful dismissal damages.
Dependent contractor
Something of value given or promised in exchange.
Consideration
If the employee is being asked to agree to something new, the employer must offer something new in exchange.
Doctrine of Consideration
3 advantages of written employment contract
1) Reduces risk of misunderstanding
2) Addresses contentious issues early
3) Reduces uncertainty
Where the parties to a contract did not address a particular issue, the courts may deem certain contractual provisions to be part of the agreement.
Implied terms
3 elements of a binding contract.
1) Offer
2) Acceptance
3) Consideration
5 grounds for challenging enforceability of a contract term.
1) Lack of consideration
2) Unequal bargaining power
3) Obsolescence
4) Ambiguity
5) Failure to match statutory minimums
A doctrine for interpreting contracts; where the terms of a contract can bear two or more meanings, the ambiguity is interpreted against the party who drafted it.
Contra Proferentem
3 sources of contract terms.
1) Express terms
2) Implied terms
3) Ancillary terms
Terms that are expressly agreed to by the parties and usually written into a contract.
Express terms
3 types of implied terms.
1) Filling in gaps
2) Statutory minimum
3) Implied by law
Terms not specifically agreed to but that are “read into”the contract by judges by deciding what the parties would have agreed to had they put their mind to it. Based on “presumed” intent.
Filling in gaps
Parties cannot agree to go below this.
Statutory minimum
Courts have developed a set of standard implied terms that reflect what they perceive the parties’ rights and obligations out to be unless expressly stated otherwise in the agreement.
Implied by law
Terms found in secondary documents such as handbooks, manuals, rules, benefit plans and may be considered part of the contract.
Ancillary terms
TRUE OR FALSE: An employee handbook is an example of implied terms.
False - it is part of ancillary terms
A period of time at the beginning of the employment relationship during which they may dismiss an employee without being obliged to provide reasonable notice under the common law.
Probationary period
TRUE OR FALSE: There is no obligation to provide for future pay increases in the contract.
True
TRUE OR FALSE: Probationary period is an implied term under the common law.
False - probationary period is NOT an implied term
TRUE OR FALSE: “Are you 18 years of age or
older?” is an acceptable interview question.
True
The requirement that employers adjust employment practices or rules to avoid discrimination.
The duty to accommodate
TRUE OR FALSE: Accommodation must be individualized and must respect the individual’s dignity and integration.
True
2 parts of the duty to accommodate.
1) Procedural part
2) Substantive part
Where the employer is required to conduct a proper assessment and investigate accommodation options.
Procedural part of DTA
Where the employer must accommodate or prove that accommodation would constitute undue hardship.
Substantive part of DTA
4-part test of Johnstone.
1) The child is under the employee’s care and supervision
2) The employee’s obligation reflects a legal responsibility
3) The employee has already made reasonable efforts to meet those obligations
4) Interference with those obligations is substantial
9 employer obligations in accommodation process.
1) Have a consistent process in accommodating
2) Accept requests in good faith
3) Deal with requests as soon as possible
4) Assess each situation on its own merits
5) Have open communication with employee
6) Only ask for necessary info for accommodation
7) Fully document all correspondence
8) Cover the costs of accommodation
9) Maximize confidentiality
TRUE OR FALSE: Random alcohol testing could be conducted anytime at the employer’s discretion.
False - only if workplace is inherently dangerous and there are enhanced safety risks
Engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Harassment
A type of harassment where the workplace feels hostile because of continuous insulting or degrading comments or actions.
Poisoned work environment
Occurs where harassment is based on sex, sexual orientation, gender identity, or gender expression. It also includes solicitation or coercion by a person in a position of authority.
Sexual harassment
Advances made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.
Sexual solicitation
TRUE OR FALSE: The test of harassment is whether a reasonable person would find the conduct offensive.
True
If an employer notices a deterioration in performance or some other indicator of an underlying issue, an employer must take the initiative where a problem is apparent.
Duty to inquire
It means a pattern of behaviour; therefore, usually—but not always—more than one incident is involved.
Course of conduct
