Overview of the Legal Framework Overview

There are two main sources of employment law in Canada  Statute law  Common Law Statutes usually address issues such as minimum employment standards, health and safety and anti-discrimination Statutes are laws passed by the federal and provincial governments Employment law generally falls under provincial jurisdiction, unless the case pertains to a federal employee

Each province drafts its own laws regarding employment standards, health and safety, etc In the past all employment contracts were governed by common law, however governments created statutes to codify the laws and to address the lack of power employees had when entering into employment contracts Employment standards legislation addresses various issues such as how many hours are in a regular work week, minimum wages, vacation entitlements, working conditions, maternity and parental leaves, etc.

There are 6 important employment law statutes in Ontario:  Employment Standards Act  Human Rights Code  Labour Relations Act  Occupational Health and Safety Act  Workplace Safety and Insurance Act  Pay Equity Act

The six main federal employment laws are:  Canada Labour Code  Canadian Human Rights Act  Canadian Charter of Rights and Freedoms (Constitution Act)  Employment Equity Act  Canada Pension Plan  Employment Insurance Act

Common Law consists of decisions made by judges, and in employment law cases this usually covers the area of wrongful dismissal, contract disputes and interpretation and torts Judges are required to follow stare decisis when making decisions, which means lower courts are bound by the decisions of the higher courts – this ensures that similar fact cases are decided in a similar manner Common law also includes the interpretation of statutes, which can expand or narrow their meaning and scope (Meiorin case) Employment contracts can be made orally or in writing and fall under the common law

Employers and perspective employees will negotiate the terms of the employment contract There is an implied term in all written and oral contracts regarding notice of dismissal which allows for a reasonable notice period for dismissal or pay in lieu of notice Notice is not required in cases where an employer can demonstrate “just cause” or serious misconduct Notice is required even in cases of lay-off, work shortage or reasons of economic necessity In wrongful dismissal cases, employees seek “damages” in the from of monetary compensation for lost wages and benefits Employees may also seek damages for torts (wrongdoing)

There are several administrative tribunals in Ontario which address the majority of employment law disputes Tribunals are created by the government as a tool to decide disputes which pertain to specific statutes, they are often less formal than courts Tribunals are subordinate to courts of law and often have a specialized knowledge and area of expertise Governments may try to prevent court interference with tribunal decisions by adding privative clauses to the enabling statute Courts will still review decisions of a tribunal, even if there is a privative clause, when there is a dispute regarding jurisdiction or procedural fairness issues. This is called judicial review.

Courts are encouraged to give deference to tribunals due to their specialized knowledge and expertise, the standard of review that is applied is an assessment as to whether the decision was “reasonable”. Appeal of tribunal decisions will usually be to the Divisional Court, paralegals are not permitted to appear at this level of court