law529-midterm-1-overview-of-half-the-course

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Feb 20, 2024

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lOMoARcPSD|7290461 MIDTERM 1 Introduction  Employment law: concerns the relationship between an individual and the employer in a nonunionized setting through employment contracts  Employment is understood through the province unless it is an area of national importance (p.247)  Employment: an organizational form through which a person sells his/her labour power to a buyer of labour in exchange for value through a contract  Contract principles of offer, acceptance and consideration apply to the employment relationships as well  Labour law: governs the relationship between the union and the employer through a collective agreement  Different from contract law as it is an on-going relationship which may expose you to more risks as labour is not a commodity (as it is hard to distinguish between an individual and their labour)  There has to be governmental intervention  There is an imbalance of power between employer and employee which leaves the employee open to certain vulnerabilities which is not the case in car selling example  Ontario Employment Standards Act and common law which are governmentally dictated and enforced within Ontario  Ex. common law reasonable notice when dismissing an individual  Collective bargaining within unions Three Governmental Regimes 1. Common law: judge made laws that effect future cases (precedent based/stare decisis)  Based on the idea that freedom of contract advances individual liberty while producing the most efficient and desirable distribution of skill/resource  Lower courts from the same jurisdiction have to apply the same reasoning and legal test as a higher court if it has similar factual/legal circumstances (binding precedent )  Made up of law of contracts  Legally binding agreement consisting of reciprocal promises between 2 or more parties  Employment contract: a contract between and employer and an employee that set out the conditions that the employee will provide labour under in exchange for money and sometimes other benefits (written or oral) lOMoARcPSD|7290461  Breach: occurs when a party to a contract violates one or more of the terms in a legally binding contract  Law of torts  A legal wrong defined by judges to allow a person to recover damages for harm caused by the actions of another person  Damages can be recovered even if a contract/statute isn’t violated  Applicable when there is no contract or its outside of the contract (ex. during hiring processes) 2. Regulatory law: stems from the imbalance of power in employment relationships and the early poor working conditions  Regulations: government-made detailed rules introduced as a supplement to and in accordance with authority created in a statute  Protective standards regulation: government regulation designed to protect employees by imposing mandatory standards  Courts play a smaller role but provide judicial review of expert administrative tribunal decisions  Employment relationship is not like any other commercial relationship due to imbalance of power  Con: can’t keep up with societal changes, too extensive, enforcement is an issue and is reliant on individual to raise issues 3. Collective bargaining law: workers act collectively to even out the power imbalance through a certified union  Increase their bargaining power by withholding labour as a group  Made up of three categories of legal rules  Government made statutory rules regulating the formation and administration of unions, collective bargaining and industrial conflict

enforced by tribunals called the labour relations boards  Collectively bargain rules found in collective agreements (contract between employer and trade union) are imposed in whole or partly by interest arbitrators (group of 1/3 that set out the terms when the parities can’t) which are enforced by labour boards or labour arbitrators  Judge made rules based on common law torts that mainly apply to labour picketing and strikes which are issued and enforced in courts  Argument that unionization protects the 1% while negatively impacting the individuals  Civil law doesn’t pass laws it just interprets it so in some cases it might not be able to help some if there are no laws on that specific issues  Implied term of reasonable notice: if an employer fires you with no justifiable reason they have to provide you notice  P.8 court hierarchy  Section 91 & 92 lists the various jurisdictions each section of government has Chapter 2- Defining Employment Relationships  Courts may intervene in contract case when they think what the contractor is doing the same job as an employee to protect employee and their rights  Employers may choose to say it’s a contractor to avoid tax contribution, leave, vacation overtime pay, benefits, to forgo employment compensation funds, to avoid vicarious liability  Employee: a worker who enter into an employment contract with an employer that involves an exchange of labour for wages and maybe benefits and the contract is subject to all of the laws that govern employment contracts  Vicarious liability: legal rule where an employer is liable for damage caused to a third party by an employee  Independent contractor: a worker who is in business for himself and who, therefore isn’t an employee and isn’t protected under the common law of employment  Commercial contracts: a contract between 2 businesses including a business in the form of an independent contractor  Employee and contractor question on exam** Common Law Employee Test  Not all of them has to be present at the same time  Control: the more control that is asserted on the individual the more likely the person is an employee  Ownership of tools: if the organization provides the tools you are an employee  Chance of profit : if there’s higher chance of profit they are more likely to be a contractor and if there’s less chance of profit they are more likely an employee  Risk of loss: if there’s a higher risk of loss they are more likely to be a contractor and if there’s little to no risk of loss they are more likely an employee  Organization/integration test : is what you are doing an integral part of the organization? (the individual doesn’t have to be essential)  Exclusivity: if the organization tells you that you cannot work for anyone else  Duration: the longer that you work for an organization the more likely you are an employee  Formality: how do the parties represent themselves  Ex. p. 20* p.21 helpful questions to understand the tests Definitions of intermediate category (regulatory regime)  Dependent contractor: has more autonomy and independence but is financially dependent on the organization and is treated like an employee in employment relations act (collective bargaining legislature broadened the def. of employee to include this)  Regulations can also narrow the employment definition  ESA defines interns in 6 conditions : (narrow) 1. Training is similar to that of a school 2. And the training is in the benefit of the individual 3. The person providing the training is get little to no benefits from the training 4. The person is not replacing an employee 5. The individual is not entitled to a job 6. The person is advised that they will receive no pay for the time they spend training  Bill 148 which made changes to intern definition (Wynne)  Bill 47 repealed a few things about 148 (Ford)  148 removed the six conditions making an intern an employee the only conditions left is training is similar to that of a school (we don’t have the six anymore) but it isn’t enforced enough to have enough change  To avoid exploitation: added section 5 (1) in the ESA through Bill 148 which created the reverse onus of proof (so the employer has to prove that someone is an employee but it’s gone now repealed by Bill 47) and it is (an offence on its own to misclassify an employee)  Currently, one can be legally an unpaid intern only if they are in an approved college and Uni. program Precarious work  There’s a proliferation of non-standard work  The idea behind temporary workers are a good idea but as more organizations used them it became a way of saving money and distance themselves from

workers to avoids various obligations and liabilities Chapter 6-Recruitment and the Hiring Process  Has several problems and is governed by human rights code and discrimination laws lOMoARcPSD|7290461  Most of the law that effects this process occurs under the regulatory regime because a contract hasn’t been created yet  Common law has a limited role in policing the hiring process as shown by Seneca v. Bhadauria  There are no laws under common law against discriminatory behaviour individual governments have created their own regulations to protect people  Seneca case: person was told to take it to the human rights tribunal  They are mainly concerned with regulating the control of information between the parties (so both have enough/truthful information to enter into a contract) Common law torts that apply to recruitment & hiring  Torts by a prospective employer  Deceit: where party A makes a false statement with the intention of misleading party B, B relies on that false information and suffers a loss for which they can claim damages  Fraudulent misrepresentation: party A knowingly makes a false statement with the intention to mislead party B and the statement induces party B to enter into a contract and suffer a loss 4 elements  Party B can rescind (set a contract aside and go back to original position) the contract and seek damages  Negligent misrepresentation: party A who owns a duty of care makes an untrue statement to party B without sufficient care as to the accuracy of it, which party B relies on and suffers a loss which they can seek damages for 1. There must be a duty of care from the prospective employer to the hiring employee (reasonable foreseeability) always the case 2. The representation in question must be untrue, inaccurate or misleading 3. The representor must have acted negligently in making the misrepresentation (should have known) 4. The representee must have relied in a reasonable manner on the misrepresentation 5. The reliance must have been detrimental to the representee (loss)  Only those who owe a duty of care can commit negligence torts  Duty of care: special close relationship between two parties that creates an obligation in tort law to take reasonable steps to avoid harming the other party  Ex. Queen v. Cognos Inc.  Torts by job applicant  Fraudulent and negligent misrepresentation (similar to misrepresentation by employers)  When the employee is fireable without notice (just cause) if the applicant lied  When the job applicant lied about a material fact that the employer relied on (is required for the job)  When the job applicant lied about a non-material fact like assets, (you can fire them if you can prove that a high level of trust is needed)  Wrongful dismissal: lawsuit by an employee against a former employee claiming that the employer terminated their contract without complying with the implied term in the contract requiring reasonable notice  Summary dismissal: termination of an employment contract by an employer without notice to the employee in response to a serious breach of contract by the employee Chapter 8- Expressed and ancillary employment contract terms  Contracts are best done in writing to manage expectations, have proof and avoid ambiguities/ less legal disputes Interpreting ambiguous (multiple interpretations) terms  Parole evidence rule: a common law rule of evidence where a judge must decide what a contract means by only looking at the clear words of the contract (when terms are unambiguous)  When terms are ambiguous evidence from either parties about what they intended the contract language to mean evidence can include what was said in negotiations and how it was applied in the past  Contra proferentem doctrine: a rule of contract interpretation in which a judge interprets an ambiguous contract term in the manner that is most favourable to the part that did not draft the contract Sources of employment contract terms  Expressed contract terms: terms of a contract that the parties have explicitly agreed to either written or orally  Restrictive convent clauses  Non-disclosure clause: prohibits a former

employee from disclosing information that has propriety value to the employer  Non-solicitation clause: prohibits a former employee from attempting to persuade the employer’s customer to stop doing business with the employer instead do business with the employee  Non-competition: prohibits a former employee from entering into a competing business with the employer  A court can find a non-compete clause as against public policy (public policy illegality) and make it unenforceable due to the imbalance of power and right to trade  The clause is effective if employer can prove: 1. They were trying to protect a legitimate proprietary interest (confidential info, key business connections) 2. They drafted a non-compete clause that is reasonable against time and space (reasonable depends on the circumstance but more than 2 years is unreasonable and more limited the space the better) 3. The employer had to use a non-compete there was no other less restrictive clause and is needed to protect the legitimate interest of the employer  Ex. Lyons v. Multari it failed this since Multari was not the face of the business  If the employee was the face of the business the non-solicitation clause is not enough 4. Its clear and unambiguous  Can protect yourself by including severance?  If the employer terminates the contract without reasonable notice the contract has been repudiated and the clause is not enforceable  Termination of clauses:  Fixed term contract: contract with a defined end date  Fixed task contract: contract to perform a defined task which when done ends the contract  Indefinite term contract: contract with no specified end date so reasonable notice is required for termination  At-will contracts: default in the US where either party can terminate a contract with no lOMoARcPSD|7290461  Ancillary contract terms : terms found in secondary documents such as human resource manuals or employee handbooks that have been incorporated into an employment contract (physically separate from the employment contract)  Are they enforceable, there has to a clause that these documents are part of the contract  Problem arises when the it is later signed as there is no consideration  Legally enforceable only if 1. It is made clear that the additional document was intended to be legally enforceable and 2. That the employee understood and agreed to that condition 3. New consideration Chapter 9-Implied Employment Contract Terms  Implied contract terms: a default contract term invented by common law judges and read into employment contracts when the written terms of the contract don’t address the specific issue addressed by

the implied term  Terms that aren’t specified but are integral part of the employment relationship  Honesty, working safely, to act in a civil manner, respectful treatment aka decency, civility, respect and dignity (employer’s implied terms)  Courts have recognized 2 ways of implying contract terms 1. Implication by fact: when terms are implied based on the presumed intention of the parties 2. Implication by law: term is implied into a contract a matter of legal duty that the judge believes ought to be imposed due to the nature of the contract  Business efficacy test: used by common law judges to justify implying a contract term on the basis that the term is necessary to make the contract effective  Officious bystander test: approach used to justify implying a contract term on the basis of presumed intention of the parties, its implied if it is obvious to an uninterested bystander that other parties intended for the contract to be part of the contract  This way a practice that have been followed and accepted by both parties then court may find that they intended the term be implied in the contract  Wrongful dismissal: lawsuit by an employee against a former employer alleging that the employer terminate their contract without complying with the implied term of reasonable notice  If there is a serious breach of contract by the employee, the employer doesn’t need reasonable notice aka summary dismissal Standardized Implied Terms Regulating Employee Conduct  Implied obligation to obey the lawful order(instruction) of the employer where a breach of this term is considered insubordination  But they are not required to follow an order that is unreasonable or is inconsistent with an expressed term  Constructive dismissal: fundamental change to an employment contract by an employer that an employee may treat as an effective termination of the contract  Ex. you quit your job but it is as if you were fired/you had no choice but to quit  Implied obligation to cooperate in advancing the employer’s commercial interest  Implied obligation to not compete and to protect confidential information  Implied obligation to avoid lateness and absenteeism (recognized term of punctuality)  Implied obligation to perform competently and safely  Implied obligation to avoid intoxication  Implied obligation to avoid harassment  Implied obligation to provide reasonable notice of resignation (usually 1-2 weeks) Standardized Implied Terms Regulating Employer Conduct  Implied obligation to provide reasonable notice of termination  Implied obligation to provide reasonably safe work environment  Implied obligation to treat employees with “decency, civility, respect and dignity” and engage in “fair dealing”  Implied obligation to permit employees to report to work (where temporary layoffs and unpaid suspensions violate this implied term)  Implied obligation to compensate employers for work performed  Quantum Meruit: entitlement to be paid fair market rate for work performed when an amount is not said in a contract Chapter 10-Modifying Employment Contracts  Important to be able to make changes to a contract because it is long-term relationship When a contract expressly deals with contract modifications  Usually require both parties to agree to the changes  Can be unilaterally changed by the employer if it is notice (prohibited in Canada) indicated in the contract When a contract does not expressly deal with contract modifications  When the employee agrees to the modification  New consideration is needed even if both parties sign the amended contract  Continuing employment is not enough to be new consideration since under the original contract the employer is required to continue the employment unless there is grounds for dismissal or reasonable notice is given (since they were already entitled to warning)  Forbearance: a promise by one party in a contract to another to refrain from exercising a contractual right for a period of time which can be new

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