Topic 1: Canadian Legal System Flashcards
Sources of Employment Law, Key Employment Statues, Consitutional Law, Common Law, Branches of Common Law, Judicial Framework
What does BC Human Rights Tribunal adjudicate?
Discrimination claims of employees in BC
What are the two important points to note about the adjudication of legislation?
1 Whether the court or tribunal has jurisdiction
2. How the court/tribunal interprets the legislation
Sources of Employment Law
Statutes/Act/Legislation, Constitutional Law, Common Law
Definition of Statutes/Acts/Legislations?
Law passed/made by/enacted by Federal or Provincial Government.
Who makes consitutional law?
Government, Province
An example of constitutional law that applies to HR?
Canadian Charter of Rights and Freedoms
Who makes common law?
Judges
An example of a statute/act/legislation that applies to HR?
Employment Standards Act
Generally, what does wrongful termination fall under?
Common law
Generally, what do acts of discrimination fall under?
Constitutional Law
An example of constitutional law that applies to HR that’s specific to BC?
BC Human Rights Code
What does the BC Employment Standards Act fall under?
Statutes/Acts/Legislation
What does the BC Human Rights Code protect and promote?
It prohibits unfair discrimination and promotes equity
What does BC Employment Standards Act protect?
It provides the minimum/basic conditions of employment
Generally speaking, which rights normally only apply to non-unionized employees?
Common law rights
Where are non-constitutional but legal rights available only to unionized found?
Collective agreements, labour relations codes
What is a statute specific to Alberta?
Alberta Human Rights Act
What are employment statutes passed based on?
It’s passed/enacted based on society’s changing needs. It protects demograhic shifts/changes of employees when they require rights/protection beyond those that currently exist.
How to examine laws critically?
- Identify the policy issue it’s trying to address.
- Understand the goal of the legislation
- Analyse the extent to which the law has been/will be effective.
What are some examples of demographic shifts that employment statues address?
Covid-19 protocols, aging population, diverse workforce rights/needs, New technology and privacy concerns
Who interprets legislation while adjudicating cases?
Judges or administrative tribunals
What does adjudication mean?
A formal judgment on a disputed matter
In BC, who adjudicates online resolution of claims of $5k or less (if not adjudicated by BC Employment Standards Branch for ESA claims)?
BC Civil Resolution Tribunal (CRT)
What are the 3 levels of government in Canada?
- Federal
- Provincial
- Municipal
What does the Canada Labour Code (CLC) apply to?
Employment conditions of employees working in federal industries.
What are the implications of judges’ interpretations of legislations?
It may set a precedent for future interpretations of the legislation.
What if a clear precedent does not exist?
The judge must interpret and apply legislations
Which employment laws are federal?
Legislation regarding national matters
Which employment laws are provincial?
Provincial statutes on employment
Which employment laws are municipal?
Bylaws impacting local workplaces but which have no jurisidiction over employment
Name 6 employment law statutes in BC
BC Employment Standards Act, BC Human Rights Code, BC Labour Relations Code, BC Occupational Health and Safety Regulation (OHS), BC Workers Compensation Act, BC Personal Information Protection Act (PIPA)
What does BC Employment Standard Acts cover?
Minimum workplace standards and rights for employees
What does BC Labour Relations Code cover?
Rights of non-federal unionized workers: Collective bargain/union rights
What does BC Occupational Health and Safety Regulation cover?
Responsibilities of employers to ensure a safe workplace and prevent workplace injuries
What does BC Workers Compensation Act cover?
“No-fault insurance”: Compensates workers for work-related injuries
What does BC Personal Information Protection Act cover?
Rules for private sector employers on collection, use and disclosure of employees’ information
Name two Federal Statutes that apply to federal workers only
Canada Labour Code (CLC)
Canada Human Rights Act (CHRA)
Name two federal statutes that apply to both provincial and federal industires
Canada Pension Plan
Employment Insurance Act
What does Canada Pension Plan provide?
It provides qualifying employees with pension benefits on retirement and permanent disability.
What does Employment Insurance Act provide?
It provides qualifying employees with income replacement during periods of unemployment
What is the supreme law in Canada?
The Canadian Charter of Rights and Freedoms
What is the objective of the Charter in an employment context?
It provides protection from improper/oppressive conduct by federal government and guarantees equality rights to everyone with no unfair discrimination
An example of an application of the Charter
Covid-19 related vaccine requirements for essential workers.
Name the 3 limitations of the Charter application
- Protects only against government conduct, not private employer or individuals
- Government may interfere with basic rights/freedoms if Reasonable and Justified
- Notwithstanding Clause allows government to create laws that violate/restrict/contradict some charter rights
What areas fall under government conduct as protected by the Charter?
Institutions and services provided by the government, and private institutions acting as “arms of the government” by assisting government with powers
What protects employees under private sector employers in BC?
BC Human Rights Code
What happens if a section of a statute/HR Code is in conflict with the Chater?
The section is void and must be replaced.
What’s considered a reasonable/justified interference?
Matters relating to interests of the public e.g. covid lockdown
What is a requirement unique to a Notwithstanding Clause?
It must be declared and renewed every five years (Sunset Clause)
Why is the Notwithstanding Clause rarely invoked?
Governments don’t want to admit to knowingly infringing Charter rights
Define a Sunset Clause
A measure within a statute/regulation/law that provides for the law to cease to be effective after a specified date, unless further legislative action is taken to extend it.
Define Common Law
Judge-made laws that fill the gaps where statutes fail to address an issue.
Which take precedence between Common Law and Statutes?
Statutes
Which judge-made laws must be followed by all other courts in all Canadian provinces?
Judge-made laws of the Supreme Court of Canada (SCC)
What is the hierarchy of courts in Canada?
- Supreme Court of Canada
- Provincial Supreme Court
- Provincial Court
What does it mean to “Let Decision Stand”/ stare decisis?
Judges following decisions made within courts’ hierarchy, where the lower courts follow the higher courts if facts are similar/comparable.
Generally speaking, what is the purpose of stare decisis?
To promote predictability and consistency in decision-making
True/False: A provincial court is compelled to follow the ruling of a higher court in a different province.
False. Only need to follow Supreme Court Canada, but not Supreme Provincial courts. But they may consider their decision int their own decision making.
What would prevent precedents from being applied in common law cases?
Essential differences in the facts of the case
Precedent Pros?
Predictability: It looks at the previous outcome of similar cases and creates consistency
The cons of following precedent?
It’s inflexible and doesn’t account for evolving social attitudes
How is common law most commonly used in the context of employment?
Employment contract - unless it’s under trade union (collective agreement)
What are the four “assumed”/implied terms of all employment contracts?
Duty to be loyal, employer must act in good faith, safe workplace conditions, employee should not compete with employer
What does just cause termination allow?
Termination with no notice or severance because it is a justified termination
When do you have to give reasonable notice to employee?
When there’s no legal cause/justification for termination
What kind of legal action is available for breach of contract? And where do you go to claim it?
Claim for damages - Bring to the courts if matter is more than 5k; if less, bring to civil resolution tribunal.
When do you bring a claim to the BC Small Claim Court?
When matter is for more than 5k, up to 35k worth of damages
When do you bring a claim to the BC Supreme Court?
When claim is more than 35k
What’s the difference between common and civil law?
Common is based on precedents (binding precedent), while civil law are based on set codes and statutes
What is a tort?
A civil law for wrongs and damages that have a legal remedy, independent of any contractual relationship, between individuals
What tort do willful/deliberate acts causing injury and/or “harm” fall under?
Intentional Tort e.g. defamation, unwanted physical conduct, threats
Name some examples of intentional torts
Tort of Battery, Tort of Assault, Tort of Defamation
Define a tort of negligence
Acting in breach of standard of care when placed in situation where standard of care is required
What does it mean to breach standard of care?
A reasonable person in a similar situation would have foreseen and prevented harm
What’s the highest court in BC?
BC Appeal Court - hears appeals from BC supreme court
How do you determine forum of claim? Name the forum for work conditions, the forum for discrimination, the forum for breach of contract, and the forum for safety issues at work.
Look at nature of claim -
Conditions of work: Employment Standards Branch
Discrimination claim: BC Human Rights Tribunal
Breach of Contract: Civil Resolution Tribunal
Safety Issues at Work: WorkSafe BC
