LAW 529: Employment and Labour Law (September 7 , 2012) th
The Legal Framework
Defining the Relationship
What is Employment and Labour Law?
- Employment Law:
Non-unionized employees (terms based on individual contract of employment).
- Labour Law/Labour Relations/Industrial Relations:
Unionized employees (terms based on negotiated collective agreement).
Why do we need employment and labour law? The Evolution
Feudalism: master and servant relationship (status)
Common law of contracts: labour is a commodity
Labour is not a commodity:
- Imbalance of bargaining power
- Work as a central component of employee’s lives
Our focus is Ontario
- Canada is a federal state with three levels of government: federal, provincial, and municipal.
- Municipalities have no jurisdiction over employment law.
- Sections 91-92 of the Constitution (1867) (division of powers): no specific reference to
- Toronto Electric Commissioners v. Snider: employment law falls within the provincial
jurisdiction. The federal government has authority over industries of national importance (e.g.
banks, telephone companies, airlines, television and radio stations).
- Although employment laws in all provinces are similar in principle, they vary in detail.
Where do employment laws come from?
- Main Sources:
- Statute Law – made by legislatures
- Common Law – based on decisions of judges (and evolves over time).
Acts and Regulations
- Also known as “legislation” or “acts”
- Contain main requirements of law
- Must be passed/amended by legislature - Regulations
- Contain more detailed requirements
- Easily changed within government
Key Ontario Employment Statutes
- Employment Standards Act: Sets minimum terms of employment (e.g. vacation pay, overtime
pay, hours of work).
- Labour Relations Act: Deals with the collective bargaining process and employees’ right to
- Occupational Health and Safety Act: Outlines health and safety requirements in the workplace.
- Workplace Safety and Insurance Act: Compensates employees for work-related accidents and
- Human Rights Code: Aims at preventing and remedying discrimination based on prohibited
- Pay Equity Act: Requires employers to provide equal pay for work of equal value to women.
Federal Employment Statutes
- The Main two statutes (apply to federally-regulated employers and their employees):
- Canada Labour Code
- Canada Human Rights Code
- Two other federal statutes with some relevance to provincial workers:
- The Employment Equity Act
- Two other federal statutes equally apply to federally and provincially regulated industries:
- Canada Pension Plan Act
- Employment Insurance Act
Canadian Charter of Rights and Freedoms
- Sets out a broad range of rights and freedoms.
- Applies only where there is an element of government activity.
- Part of Canada’s Constitution.
- Section 15 (Equality rights): “Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.”
- If a court finds that any law violates one of the rights or freedoms listed in the Charter, it may
strike down part or all of the law and direct the government to change or repeal it.
- SCC in R. v. Kapp, 2008 SCC 41: Two-part test for assessing a s.15 claim:
- (1) Does the law create a distinction that is based on an enumerated or analogous
ground?; and - (2) Does the distinction create a disadvantage by perpetuating prejudice or
- Section 1 states that the rights and freedoms are subject to "such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society".
- The test was set out in R. v. Oakes:
- The objective must be pressing and substantial.
- The measure must be proportional:
- Rational connection between objective and measure
- Minimal impairment
- Proportionality between effects of measure and objective
- Example of Charter’s effect on employment laws:
- M v. H case (definition of “spouse”).
- Vriend v. Alberta  1 S.C.R. 493 (omission of sexual orientation).
- McKinney v. University of Guelph (mandatory retirement).
Impact of the Charter on Private Sector Employers
- The Charter applies only to government actions and conduct.
- It does not apply to the actions of individuals or private sector employers and employees.
- However, an employee may use the Charter to challenge employer’s decision or policy if it is
based on or allowed by legislation that violates the Charter.
- The McKinney case
- Ontario Nurses’ Association v. Mount Sinai
Section 33 of the Charter
- Allows the federal or provincial government to enact legislation notwithstanding a violation of
- The government must declare that the law in question will operate notwithstanding the charter.
- The declaration must be renewed every five years.
- Only sections 2, 7-15 can be suspended by s. 33.
- This section has rarely been invoked.
- Originated in England.
- Cases are decided by judges on the basis of precedent (what previous courts have decided in
cases involving similar circumstances and principles).
- Decisions made by higher courts are binding on lower courts in the same jurisdiction.
- Stare decisis = to stand by things decided.
- Judge-made law.
- It is a “residual” law. Common Law Branches Affecting the Employment Relationship
- Contract law:
- Contractual principles apply.
- Subject to applicable statutes, parties have “freedom of contract”.
- Implied term of reasonable notice upon dismissal.
- The remedy is damages (forward looki