Class Notes (806,507)
Canada (492,261)
JS380 (30)

Establishing the Employment Relationship.docx

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University of Regina
Justice Studies
Stefan Idziak

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, [1981] 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.  Facts: 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  Analysis: 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  Ratio: o No such tort as employment discrimination.  sidenote 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 misrepresentation? 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 protections  but common law says you cannot be terminated without just cause, or without due notice 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 Wrongful Dismissal  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 employment contract 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.  EXCEPTION 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 position 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 o s
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