LAW 529 Study Guide - Fall 2018, Comprehensive Midterm Notes -
LAW 529
MIDTERM EXAM
STUDY GUIDE
Fall 2018
LAW529 Lecture #1
The Law of Work – David D.
2 take home assignments – worth 15% - midterm 30% - final exam – 40%
Feb 14th – March 28th – Mid Feb 28th – 90 mins – open book
Solving a legal question: - what are the facts? What are the relevant legal issues?
Duty of care test – donaghue – anyone that might be affected by your behavior –
Breach of standard of care –
Causation - reasonably forseeable loss/damage/injury
Judicial framework – most employment law statues have separate officials or tribunals to deal with any
complaints of contravention (i.e. employment standards office, human rights tribunal, labor relations
board)
Stare decisis – stand by things decided – i.e. if SCC says this is what this means – then that interpretation
binds all the courts below it whether the other courts agree or not
The courts are generally only involved on appeals from tribuna decisions (i.e. wrongful dismissal claims)
The courts will generally only overturn a tribunals decision if it was PATENTLY UNREASONABLE - ONLY IF
THERE WAS A SERIOUS ERROR IN LAW MADE BY THE TRIBUNAL – COURT WONT REALLY QUESTION THE
FACTS BUT WILL QUESTION THE LEGAL JUDGEMENT THAT WAS USED. DID THE TRIBUNAL APPLY THE LAW
CORRECTLY TO THE FACTS THEY HAD?
Constitution is the dominant source of law – all legislation and common law must conform to the
constitution
Consitutional authority to deal with EMPLOYMENT IS BESTED IN THE PROVINCES!!!! Under S.92(Property
and civil rights)
EXCEPT FOR orgaizstios of atioal iportae – then the federl govt has jurisdiction over
employment – for example the BANK is governed by FEDERAL employment laws – Canada Labor Code –
or a postal worker
Case: Toronto Electric Commissioners v Sniddr, 1925
Charter - fundamental freedoms (s.2) - democratic rights (ss.3-5) – mobility rights (s.6) – legal rights (ss.7-
14)
Equality rights – V IMPORTANT – S 15 – Every individual is equal before and under the law and has the
right to equal protection and equal benefit o the law without discrimination and in particular without
discrimination based on race national or ethnic origion color religion sex age or mental or physical
disability.
Describes an exception for affirmative action programs targeted at disadvantaged groups
S. 28 – Rights guaranteed equally to both sexes
find more resources at oneclass.com
find more resources at oneclass.com
Limitation of the charter – (ss 1, 32, 33)
Notwithstanding clause – s.33.1 --------------- limitations – s.1. REASONABLE LIMIT – DEMONSTRABLY
JUSITIFED
R v Oakes 1986 SCC
- 3 part test fr determining whether the violation of the Charter is justifiable under s.1 as follows:
- 1) does it enforce or reflect and important societal concern?
- 2) was the limitation on the charter minimal?
- 3) is the limitation precise as to the prohibited conduct --- i.e. what is the definition of a suspected
terrorist??
Examples: fed govt is concerned about domestic terrorism – ppl are planning to commit terrorist acts
– govt does not have sufficient evidence to arrest them – wanna pass a law that allows authoritites to
arrest and detain indefinitely suspected terrorists – but you cant do this bc of s 14 of the charter –
they can use notwithstanding clause in the new law they propose itself
Ref boxes 20.3 and 20.4 in textbook
Mckinney v Uni of Guelph
- He was a professor – compelled to retire at age 65 – due to policy which forced them to retire –
he said it violates s 15 of the charter – equality rights – discrimination on thebasis of age – the
answer from the uni was that under the OHRC – the definition of age at that time only applied to
employees between the ages of 18 and 64 – so when u turn 65 u can be discriminated against on
the basis of age – prof said that definition of age in the OHRC violates the charter! Courts said
that even tho it violates – the uni can still argue under s 1 – a reasonable limit –
Class 1 Fact Scenario 1
MVH 1999 SCC
SCC held that this statutory definition was unconstitutional, as it breached the couples equality rights
under s.15 of the charter (sex)
Vriend and MVH are notable bc – the authority of SCC extends to writing legislation. Sexual orientation
as added to the list of prohiited grouds uder Alerta’s idiidual rights protetio at ried ad
the definition of spouse under ontarios family law act was expanded to include same sex couples (mvh)
SCC was prepared to declare a violation of s.15.1 by what a legislatiure failed to do, not simply by what it
did
SCC determined there was a violation of s.15.1 on a ground of analogous to those enumerated
Court rejected any arguments of s.1 --- not a reasonable limit in a free and democratic society
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
2 take home assignments worth 15% - midterm 30% - final exam 40% Feb 14th march 28th mid feb 28th 90 mins open book. Duty of care test donaghue anyone that might be affected by your behavior . Judicial framework most employment law statues have separate officials or tribunals to deal with any complaints of contravention (i. e. employment standards office, human rights tribunal, labor relations board) Stare decisis stand by things decided i. e. if scc says this is what this means then that interpretation binds all the courts below it whether the other courts agree or not. The courts are generally only involved on appeals from tribuna decisions (i. e. wrongful dismissal claims) The courts will generally only overturn a tribunals decision if it was patently unreasonable - only if. There was a serious error in law made by the tribunal court wont really question the. Facts but will question the legal judgement that was used.
