The individual employment contract and employment legislation in Canada
Concerned with the laws governing job regulation between the individual employee and his
or her employer in the nonunion sector.
Two cornerstones: 1) the common law contract of employment 2) protective employment
legislation such as labour standards acts etc.
1) General principles of contract----common-law contract (ensure that markets operate
relatively freely according to the economic laws of supply and demand)
Pros: suitable for commoditiescons: ill fits the matter of human beings
The principles of contract law will enable employers to exploit their bargaining superiority to
the economic and psychological detriment of their employees.
Continual refashioning of the legal rules reflect the changing standards of personnel
management practice and changing social societal views on how work relations should be
19 and 20 centuries---- favoring the employer’s interests
Now---- emphasizing the importance of protecting the employee (more vulnerable)
Reason of the change: human rights movement, the increased adoption by employers of high-
performance work practices, and growing economic prosperity
Critics: impairing the productive efficiency of employers
Future trend: finding the appropriate balance between rights and efficiency
2) Protective employment legislation establishes an extensive range of irreducible rights an
The processing of claims under some statutes, notably human rights acts, has proven to be
extremely slow, and many employees are woefully ignorant of their legal rights.
Who is an employee?
Common-law contracts and protective-employment statutes apply only to those workers who
meet the requirements for “employee” status.
Independent contracto独立承包人 ---- assuming the risks of running their own businesses
and excluded from employment law protections, deserve protection.
Determining the employee status
1) the worker is running his or her own business as a going concern
2) the worker is integrated into a business that his or her employer is running for the
employer’s profitability 收益率
eg. Does the worker have a significant capital investment in the tools, machinery, and
Who bears the risk of economic gains and losses?
Who decides when, where, and how the work is performed?
Benefits: pay reduced levels of income tax; have the flexibility to work when they feel like it
Change: 2006, Harry Arthurs formally recommended that these independent contractors be
brought within the legislation. Participating in the collective bargaining process. Courts
began to recognize a special status of them. The contract of employment
1) an offer of employment must be made
2) the offer must be accepted
3) the terms of the agreement must be sufficiently certain to enforce
the bare skeleton: the starting time, the wage rate, a brief description of the job, and possibly
hours and vacations.
the contours of these implied rights and duties have been modified over time to reflect
changing societal expectations of how work relations should be structured----most benefited
Courts usually interpret any express terms that limit an employee’s implied rights strictly in
favor of the employee.