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LAW 529 (123)
Chapter 1

Law 529 Filsinger Chapter 1.docx

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Department
Law and Business
Course
LAW 529
Professor
Pnina Alon- Shenker
Semester
Winter

Description
Law 529- Employment and Labour law Chapter 1: (Filsinger) Overview of Legal Framework Sources of Employment Law:  Two main sources 1. Statute Law: (legislation passed by the government) (I.e minimum employment standards, anti-discrimination, health and safety etc) 2. Common Law: (Judge-made law) (i.e. wrongful dismissal actions) What is a Statute?  A law passed by federal or provincial government  Can be referred to as legislations or acts (i.e. Ontario Human Rights Code) Why are Statutes Passed or Amended?  Employment statutes usually passed because government decides employees require protections beyond those that currently exist  Minimum wage and vacation entitlements are historic laws  Anti-discrimination laws are newer but very important to protect those that were once discriminated against in the past  A new political party can propose a change in employment law  Democratic shifts and changing societal values can also lead to a change in law(i.e. more women in workforce means equal pay and increased pregnancy and parental leave  Changes in technology leads to enhanced privacy protection laws Read over page 5 for legislative process on how statutes are made Regualations: are rules made under authority of a statute (i.e. statute says there must be a minimum wage, the exact dollar amount however is found in regulations that accompany the act)  Legally binding, but not made by legislature  Made by government officials and then published in the Ontario Gazette  More easily made and amended *Jantunen v Ross page 7 (garnishing wages to repay loan)  Courts and tribunals use “internal aids” found in the statute itself to assisr in its interpretation  External aids such as legal dictionaries and scholery articles are also used in interpreting statues What Levels of Government Can Pass Employment-Related Statues? 3 levels of government in Canada 1. Federal 2. Provincial 3. Municipal  Municipalities have no jurisdiction over employment although they can pass bylaws on matters that effect the workplace (i.e. smoking)  Federal government has authority over only about 10% of employees in Canada because they are limited to industries of national importance such as banks and airlines  90% of employees are covered under provincial legislature Key Ontario Employment Statutes  Employment Standards Act: Sets minimum terms of employment (e.g. vacation pay, overtime pay, hours of work, severance, termination).  Labour Relations Act: Deals with the collective bargaining process and employees’ right to unionize.  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 diseases. Allows employers to limit their financial exposure to costs of workplace accidents through collective funding system  Human Rights Code: Aims at preventing and remedying discrimination based on prohibited grounds.  Pay Equity Act: Requires employers to provide equal pay for work of equal value to women. Why most employees in Ontario are Governed by Provincial, and not federal Employment Law  Constitution Act set out division of powers between the federal and provincial governments with no special reference to employment matters  Federal jurisdiction over employment law became limited to industries of national importance (i.e. national transportation and communication)  Navigation and shipping  telephone companies  buses and railways (interprovincial)  airlines  television and radio shows  post office  armed forces  crown corporations  chartered banks  All other employers are provincially regulated  Several different laws may apply to a single situation (i.e. employee who is injured in workplace wants to return to pre-accident job may have remedies under both workers’ compensation and human rights legislation) Federal Employment Statues (not of big focus) The Canadian Charter of Rights and Freedoms (pg.10)  Does not address employment law specifically but does set out guaranteed rights and freedoms that can effect workplace when government action is involved  Freedom of religion, association, and expression, democratic rights, mobility rights, legal rights, and equity rights  Charter is part of supreme law of the land, meaning all other statutes must accord with its principles  If court finds that any law violates one of rights or freedoms it may strike down part or all of the law and direct government to change or repeal it s.15 of the Charter 15(1) every individual is equal before and under the law and has the right to 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 (2) Subsection (1) does not preclude any law, program or activity that has its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, religion, sex, age, or mental or physical disability 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 stereotyping? 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  Supreme court fou
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