Establishing the Employment Relationship
Since employment is fundamentally treated as a contract, courts were often
reluctant to force people into them
o this lead to racism, etc.
o legislature eventually intervened.
Seneca College of Applied Arts and Technology v. Bhadauria,  2. S.C.R. 181
Issue: whether the SCC should affirm ONCA's decision to recognize a new tort of
breaching the Human Rights Code.
o P is highly educated imigrant, well qualified.
o ANswered ads placed by the college.
o Never given an interview nor told why she was rejected
o Successful candidates were less qualified, but not imigrants.
o Claiming discrimination and breach of the HRC
o ONCA willing to recognize an idependent tort of discrimination
o typically there is no such tort as refusing to consider a contract.
o you can't create a new tort out of a statutory obligation, especially because
the HRC itself contemplates a remedy.
o P should have used the remedies in the HRC to address her problem
o No such tort as employment discrimination.
o In a Case called Cognos, the SCC held that you can bring a tort if you are
hired under false pretenses
P was hired from old job under apprehension it would be amazing
new job turns out to suck, but employer wants to hold him to ocntract
SCC says you can't do this- perhaps something akin to
o a tort of "wrongful hiring" in any case.
Rights under the Contract of Employment
mostly limited to termination
during the employment you are bound by the terms of contract, subject to tstatutory
but common law says you cannot be terminated without just cause, or without due
o no right to keep job
o if the employer gives sufficient notice, you can be fired for any reason
or payment in lieu of notice
most disputed area
Dismissal is wrongful where:
o the employer dismiesses without cause and without notice
o constructive dismissal the employee quits in repsonse to repudiatory breach of the
o employer dismisses without notice, alledging but failing to prove cause.
o employee dismissed in breach of a statutory duty or in breahc of producedural
fairness if the employment relationship is a statutory one in which the
principles of administrative law apply.
o where you are employed in a federally regulated undertaking and governed
by the Canada Labour code
eg. banking, airlines, communications
o there is a special labour regime through which these employees can go to an
administrative deicision maker who has the power to reinstate you into your
Reasonable Notice of Termination
Sometimes the employment contract sets out notice period or payment in lieu of, but
courts may not enforce
if no express provision, they will look at intent of parties, include past practice and
policy statements in HR documents, etc.
But for whatever reason, in Canada the courts have usually just decided what is
reasonable in the circumstances, disregarding hte parites intentions.
Employment Standards act sets out minimum notice standards
o typically quite low, and the common law often will give more