Statute law - a law passed by the federal or provincial government. Can sometimes be referred to as
legislation or acts.
Employment statutes are usually passed because the government decides that employee's
require protections or rights beyond those that currently exist.
New legislative requirements also lead to demographic shifts
Statute's first take the form of a written bill (public, private, and private member) and must pass
3 readings in the house of commons and be passed by the senate to become a federal statute.
Federal government has 10% authority over employees in canada (banks, airlines, etc) the rest is
Key Ontario employment Statutes
The employment standards act, 2000 - minimum rights and standards for employee's
The human Rights Code - preventing and remedying discrimination on prohibited grounds
The Labour relations act, 1995 - the rights of employee's to unionize and collectively bargain
The occupational health and safety acts (OHSA) - requirements of a safe workplace
The Workplace Safety and Insurance act, 1997 - (formerly work comp) compensation for work
The Pay Equity Act - addresses the issue of gender discrimination in compensation
Common Law - the part of the law that has developed over the years through court decisions and
applied where there is no statute covering that particular area.
Pyramid of law - constitution law (top), statute law, case or common law
under common law, cases are decided by judges on the basis of precedent, and decisions made
by higher courts are binding to lower courts (this principle is called Stare Decisis)
lower courts can make a different decision if the case brought forward is proven to be
distinguishable and different from any other case in the past.
higher courts can expand boundaries of previous rulings if it believes the case no longer reflects
social norms or economic realities.
Branches of the Common Law
1. Contract Law - Fundamental to employee law because the legal relationship between an employer
and a non union employee is contractual.
determines whether an employee/employer relationship exists and the boundaries of it. 2. Tort Law - a wrong for which there is a legal remedy. Tort law is a branch of civil law (non criminal
law) and covers wrongs and damages that one person or company causes to another, independent of
any contractual relationship between them.
to establish a tort, plaintiff must show
1) the defendant owed the plaintiff a duty of care
2) the defendant breached the duty
3)the plaintiff suffered foreseeable damages as a result.
1) Supreme court of Canada
2) Federal Court of Appeal
3) provincial courts ( Superior court of justice, Ontario court of justice, Ontario court of appeal, etc)
Chapter 3 - common law issues
Areas of Common Law Liability
1. Misrepresentation by Job Candidates - if a false statement related to the qualifications or work
experience has a significant impact on the hiring decision, an employer can terminate an employee.
(refer to case of Cornell vs. Rogers Cablesystems Inc.)
2. Wrongful Hiring: negligent Misrepresentation - the employer has an obligation to ensure that
material statements made during the recruitment process are accurate (refer to queen vs. cognos)
3. Inducement (aggressive recruiting) - this tort occurs when an employee is lured from their current
position through aggressive recruiting or inflated promises (refer to egan vs. alcatel)
4.Restrictive Covenants - Clauses that protect an employer's business interests by restricting what an
employee can do during, and especially after employment. there are 3 types
1. Non disclosure clauses - prevent employee from using and disclosing confidential information
2. Non solicitation clauses - prevent employee from soliciting customers clients, or employee's
3. Non competition clauses - prevent departing employee from competing with employer
5.Anticipatory Breach of Contract - when one party rejects the employment contract , through either
it's statements or its conduct, before employment begins.
to be successful in this action, the employer must show an offer was made, an acceptance, the
employee repudiated the contract, and the employee suffered damages as a result. 6. Background Checking: Negligent Hiring - the cost of a bad hire can include potential liability for
negligent hiring if that employee later causes forseeable harm to a 3rd party (refer to downey case)
Standard of care - the level of diligence one is expect to exercise.
Independent Contractor vs. Employees
obligations that employers have to employee's but not independent contractors
Providing statutory benefits
Paying premiums for workplace health and safety insurance
providing reasonable notice of termination or pay in lieu
Remitting appropriate health and income taxes, and contributing to and remitting Canada
Pension Plan and employment insurance premiums