Employment Law: Solutions for a Canadian Workplace

Table of Contents

Note: This table of contents is a summary. Detailed tables of contents follow each tab divider.
Foreword
About the Authors
Acronyms & Abbreviations
Introduction

VOLUME ONE

TAB I EMPLOYMENT LAW: THE BASICS
Tab I AUTHORS
I-1 EMPLOYMENT LAW: THE BASICS

A. The Arena: Jurisdiction and Sources of Law
1. Jurisdiction
Summary of Jurisdiction
2. Sources of Law
Summary of Sources of Law

B. The Rules: Rights and Obligations of Employees and Employers
1. The Common Law
2. Statute Law

C. The Players: Employee and Employer
1. The Employment Relationship
2. Contract of Services versus Contract for Services
3. The Common Law Tests
4. Statutory Definitions and Implications
Checklist: Employee or Independent Contractor?
5. Other Relationships Defined in Employment Law
6. The Employer
Summary of the Employment Relationship
 
I-2 THE HIRING PROCESS
Introduction

A. The Selection Process
1. Advertisements and Applications for Employment
2. The Interview: Statutory and Common Law Considerations
Do’s and Don’ts of the Interview Process
3. References
4. Pre-employment Medical Information and Examinations

B. General Contract Principles and Common Law Considerations 1
1. Introduction
2. Offer, Acceptance, and Consideration
3. Enforceability Considerations
Checklist: General Principles and the Enforceability of Contracts

C. The Employment Contract
1. Oral Contracts vs. Written Contracts
2. Written Contracts: Some Standard Terms
3. Restrictive Covenants: Non-Competition, Non-Solicitation, and Confidentiality Covenants or Agreements
Do’s and Don’ts for Drafting a Restrictive Covenant

I-3 MANAGING THE EMPLOYMENT RELATIONSHIP

A. Probation
1. The Basics
2. Dismissal Without Cause During Probation
3. The Standard to Justify Dismissal
4. Damages for Dismissal of a Probationary Employee Without Cause
5. Extension of Probation
Summary of Probation

B. Policy Manuals, Procedures, and Workplace Rules
1. The Basics
2. New Employees
3. Current Employees
4. Policies in Practice
5. Mandatory Retirement
Checklist: Policy Manuals, Procedures, and Workplace Rules

C. Performance Reviews and Evaluations
1. The Basics
2. The Format for the Evaluation3. Considerations on Drafting a Performance Evaluation
4. The Substantive Requirements
Checklist: Performance Reviews and Evaluations
 
D. Considerations on Discipline or Promotion of Employees
1. The Basics
2. The “Unpromotable” Employee
3. Refusal or Failure to Promote an Employee
4. Considerations at the Time of Promotion
Checklist: Considerations on Promotion
5. The Institutions of Discipline
6. Verbal and Written Warnings
7. Demotion as Disciplinary Measure
8. Suspension as Disciplinary Measure
Checklist: Considerations on Employee Discipline

E. Privacy in the Workplace: Monitoring, Surveillance, and Testing
1. The Basics
2. Testing of Employees
3. The Employer’s Right to Information
4. Statutory Provisions Regarding Privacy Rights
5. Use of Privacy Policies
6. Employee Consent to Limitations on the Right to Privacy
Checklist: Privacy in the Workplace

F. Condonation
1. The Basics
2. Knowledge of Employer
3. Reasonable Time to Act
4. Actions Found to Constitute Condonation
5. Impact of Continuing Poor Behaviour
Summary of Condonation

I-4 WITHDRAWAL FROM THE EMPLOYMENT RELATIONSHIP

A. Resignation
1. Introduction
2. The Elements of a Valid and Enforceable Resignation
3. The Requirement of Clear and Unambiguous Language
4. The Employee’s Requirement to Provide Reasonable Notice
5. Wrongful Dismissal Arising out of Valid Resignations
Summary of Employee Resignation

B. Retirement
1. Introduction
2. Retirement at Common Law
3. Retirement as a Form of Constructive Dismissal?
4. Retirement Considerations Under Human Rights and Employment Standards Legislations
Summary of Retirement

C. Sale of Employer’s Business
1. Introduction
2. Traditional Common Law Rules
3. Sale of Business and the Doctrine of Mitigation
4. The Statutory Provisions
5. Recognition of Past Service: An Implied Term of the Employment Relationship?
6. Avoiding Responsibility for Recognition of Past Service
Summary of Sale of Business

D. Insolvency of the Employer
1. Bankruptcy and Receivership
2. Restructurings
Summary of Bankruptcy

E. Constructive Dismissal
1. Introduction
2. Unilateral Imposition of Change
3. Fundamental Changes in Terms of Employment
4. Grounds of Constructive Dismissal
5. The Employee’s Duty to Mitigate
Summary of Constructive Dismissal

F. Just Cause
1. Introduction
2. Preliminary Considerations
3. Grounds for Just Cause Dismissal
4. Post-Termination Considerations
Summary of Just Cause

G. Frustration of Contract
1. Introduction
2. Grounds for Frustration at Common Law
Summary of Frustration of Contract

I-5 REMEDIES
Introduction

A. Damages for Wrongful Dismissal
1. Reasonable Notice
2. Damages for Bad Faith
Do’s and Don’ts to Avoid Bad Faith When Terminating an Employee
3. Recourse for Psychological Harassment
4. Determining Remuneration and the Calculation of Damages
5. The Employee’s Duty to Mitigate
Summary of Wrongful Dismissal Damages
 
B. Mental Distress and Aggravated/Punitive Damages
1. Mental Distress
2. Punitive Damages
3. Aggravated Damages

C. Remedial Considerations in Handling a Termination
1. Structuring a Termination Package
2. Managing the Termination Interview

D. Tort Liability
1. Introduction
2. Defamation
3. Intentional Infliction of Mental Suffering
4. Negligent Misrepresentation
5. Interference with Contractual Relations
6. Conspiracy
7. Psychological Harassment
8. Director/Manager Personal Liability
9. Employer Liability for the Torts of its Employees
10.Invasion of Privacy
Summary of Tort Liability

E. Injunctive Remedies
1. Introduction
2. Preliminary Assessment of the Case
3. Irreparable Harm
4. Balance of Convenience
5. Plaintiff Undertaking
Summary of Injunctive Remedies

I-6 DEFENDING A WRONGFUL DISMISSAL CLAIM

A. Choosing Employment Counsel

B. Steps in the Litigation Process
1. Pleadings
2. Discovery
3. Summary Proceedings
4. Small Claims Court
5. Costs

C. Alternative Dispute Resolution
1. Mediation
2. Arbitration
3. Mediation-Arbitration
 
D. Settlement and Release

E. Release Clauses

TAB II  PROVINCIAL EMPLOYMENT LAW LEGISLATION ACROSS CANADA

Tab II AUTHORS

II-1  PROVINCIAL EMPLOYMENT LAWS

A. What Employers Are Obliged to Pay
1. Introduction
2. Minimum Wage (Chart 1)
3. Hours of Work and Overtime (Chart 2)
4. Statutory Holidays (Chart 3)
5. Vacation (Chart 4)
6. Method of Payment

B. Leaves of Absence
1. Maternity Leave (Chart 6)
Frequently Asked Questions
2. Parental Leave (Chart 7)
Frequently Asked Questions
3. Adoption Leave
4. Bereavement Leave
5. Sick Leave
6. Compassionate Care Leave
7. Other Leaves

C. What to Consider When Terminating Employees
1. Termination Pay (Chart 8)
2. Payment of Accrued Salary and Benefits (Charts 5 and 6)
3. Temporary Layoff (Chart 8)
4. Individual Termination (Chart 8)
5. Group Termination (Chart 8)
6. Unjust Dismissal: Statutory Remedies

D. Other Pitfalls
1. Liability of Directors and Officers
2. Sale of Business
3. Minimum Age
4. Persons with Disabilities
5. Offences

E. Provincial Employment Law Charts and Concordance 

TAB III  QUEBEC LABOUR AND EMPLOYMENT LAW

Tab III AUTHORS

III-1  QUEBEC LABOUR STANDARDS

A. Wages and the Payment of Wages
1. Minimum Wages
2. Exceptions to Minimum Wages
3. Method of Payment
Summary of Wages

B. Duration of Work
1. Workweek
2. Coffee Break
3. Meals
4. Weekly Rest Period
5. Overtime
6. Minimum Call-in Pay
Summary of Workweek

C. Statutory Holidays
1. Entitlement
2. Requirements
3. Designated Statutory Holidays
4. Indemnity

D. Annual Vacation
1. Duration
2. Indemnity
3. Vacation Period
4. Splitting Vacation Weeks
5. Termination of Employment

E. Special Leaves
1. Absences Owing to Sickness or Accident
2. Bereavement Leave
3. Leave for Marriage or Civil Union
4. Leave for Birth or Adoption of a Child or Termination of Pregnancy
5. Maternity Leave
6. Paternity Leave
7. Parental Leave
8. Family or Parental Leave and Absences
 
F. Prior Notice of Termination of Employment
1. Entitlement
2. Duration of Notice
3. Compensatory Indemnity
4. Recall Privileges
5. Other Restrictions
6. Notice of Collective Dismissal
Summary of Prior Notice of Termination
Frequently Asked Question

G. Application of Labour Standards
1. Derogation from Labour Standards
2. Sale and Transfer of the Business
Frequently Asked Question

H. Civil Recourses
1. Role of the Commission des normes, de l’équité, de la santé et de la sécurité du travail
2. Complaint
3. Inquiry
4. Remedy
5. Prescription
6. Nature of Civil Claims
Frequently Asked Questions

I. Recourse Contesting a Prohibited Practice
1. Prohibited Grounds of Sanction
2. Mediation
3. Sanctions
4. Psychological Harassment
Summary of Recourse Contesting a Prohibited Practice
Frequently Asked Question

J. Wrongful Dismissal
1. Right to Make a Complaint
2. Jurisdiction of the Administrative Judge
3. Burden of Proof
4. Examples of Just and Sufficient Cause
5. Conduct not Constituting Just and Sufficient Cause
6. Remedial Powers of the Administrative Judge
7. The Dismissed Employee’s Obligation to Mitigate
8. Sale of the Business
9. Mediation
Summary of Wrongful Dismissal
Frequently Asked Questions
 
III-2  QUEBEC LABOUR AND EMPLOYMENT LAW

A. Other Statutory Recourses
1. Section 32 of the Act respecting industrial accidents and occupational diseases
2. Section 227 of the Act respecting occupational health and safety
3. Section 45 of the French Language Charter
4. The Act respecting health services and social services

III-3  THE CIVIL CODE

A. The Civil Code
1. Employment Law in Quebec: An Introduction
2. Damages in Lieu of Notice
3. Moral Damages
4. Constructive Dismissal
5. Mitigation of Damages
6. Reinstatement
7. Sale of a Business
8. Settlement and Releases
9. Non-Competition Agreements
10. Certificate of Employment

III-4  QUEBEC HUMAN RIGHTS

A. Prohibited Grounds of Discrimination
1. Introduction
2. Prohibited Grounds of Discrimination
Summary
Frequently Asked Questions

B. Hiring 1
1. Application Forms and the Interview Process
Summary of Hiring
Frequently Asked Questions

C. The Employer’s Right to Impose Job Requirements
1. Introduction
2. Bona fide Occupational Requirement
3. Duty to Accommodate
Summary of Job Requirements
Frequently Asked Questions
 
D. Recourses
1. Introduction
2. Compensatory Damages
3. Exemplary Damages
4. Injunctive Relief
Summary of Recourses
Frequently Asked Questions

E. The Quebec Human Rights and Youth Protection Commission
1. Introduction
2. Investigative Powers
3. Conciliation
4. Power to Institute Proceedings
Frequently Asked Questions

F. The Quebec Human Rights Tribunal
1. Introduction
2. Tribunal’s Jurisdiction
3. Tribunal’s Composition
Frequently Asked Questions

VOLUME TWO

TAB IV  HUMAN RIGHTS AND EMPLOYMENT LAW

Tab IV AUTHORS

IV-1 HUMAN RIGHTS IN THE EMPLOYMENT CONTEXT

A. Introduction
1. What is “Employment”?
2. An Overview of Discriminatory Grounds
3. Who is Responsible?
Summary

B.  Human Rights Concerns at the Hiring Stage
1. Advertising and Interviewing Techniques: What is Permissible?
2. Guidelines for Pre-Employment Application and Interview Questioning
3. The “Overqualified” Applicant
4. Discrimination in Hiring
Summary
 
C. Human Rights Concerns During Employment
1. Introduction to Discrimination and Employment
2. The Duty to Accommodate
Summary

D. Drug and Alcohol Testing
1. Introduction
2. The American Approach
3. The Canadian Approach
4. Random Testing
5. Reasonable Cause Testing
6. Rehabilitation Situations
Summary

IV-2  PROHIBITED GROUNDS OF DISCRIMINATION

A. Introduction
1. Human Rights in the Union Environment

B. Age
1. Introduction
2. The Definition of Age: Significant Jurisdictional Differences
3. Exceptions to Discrimination Based on Age
4. Mandatory Retirement
5. Selected Case Law Examples
6. Age Issues in the Union Environment
Summary

C. Race, Colour, Ancestry, and Place of Origin
1. Introduction
2. Race Discrimination: Customer or Client Preference is no Defence
3. Selected Case Law Examples
4. Race, Colour, Ancestry, and Place of Origin Discrimination in the Union Environment
Summary

D.  Criminal Conviction
1. Introduction
2. Significant Jurisdictional Differences
3. Selected Case Law Examples
4. Criminal Record Issues in the Union Environment
Summary
 
E.  Disability
1. Introduction
2. What is “Disability”?
3. Duty to Accommodate Disability
4. Disability Issues in the Union Environment
Summary

F.  Sex
1. Introduction
2. The Definition of “Sex”
3. The Definition of “Gender”
4. Discrimination Based on Pregnancy
5. Wage Equity
6. Sex Discrimination in the Union Environment
Summary

G. Sexual Harassment
1. Introduction
2. The Definition of “Sexual Harassment”
3. The Definition of “Conduct of a Sexual Nature”
4. Unwelcome Conduct
5. Detrimental Effect/Adverse Consequences
6. The Definition of “Workplace”
7. Dealing with Complaints of Sexual Harassment
8. Sexual Harassment Claims in the Court
Summary

H. Sexual Orientation
1. Introduction
2. What Does “Sexual Orientation” Mean?
3. Dismissal and Disparate Treatment
4. Selected Case Law Example
5. Sexual Orientation Issues in the Union Environment
Summary

I. Marital or Family Status
1. Introduction
2. What Do “Marital Status” and “Family Status” Mean?
3. Establishing Prima Facie Family Status Discrimination
4. Discriminatory Conduct
5. Selected Case Law Example
6. Marital Status and Family Status Issues in the Union Environment
Summary
 
J. Political Belief
1. Introduction
2. Defining a “Political Belief”
3. Discriminatory Conduct
4. Selected Case Law Examples
5. Political Belief Issues in the Union Environment
Summary

K. Religion
1. Introduction
2. The Definition of “Religion”
3. The Test for Discrimination and Exemptions
4. Selected Case Law Examples
5. Religious Discrimination in the Union Environment
Summary

L. Gender Identity and Gender Expression
1. Introduction
2. What Do “Gender Identity” and “Gender Expression” Mean?
3. What Obligations Do Employers Have?
4. Selected Case Law Examples
Summary

Appendix IV 2.A: Sample Employment Application
Appendix IV 2.B: Prohibited Grounds of Discrimination

IV-3 POTENTIAL REMEDIES FOR HUMAN RIGHTS VIOLATIONS

A. Potential Remedies for Human Rights Violations
1. Preventing Future Discrimination
2. Compensation for the Complainant
3. Interim Remedies in Human Rights Proceedings
4. Courts Considering Human Rights Claims
Summary
 
TAB V  CANADA LABOUR CODE
Tab V AUTHORS
V-1 THE CANADA LABOUR CODE

A. Overview
1.The Legislator’s Objective: Setting Federal Labour Standards
2. To Whom Do the Standards Apply?
3. The Federal Labour Standards: A Minimum Threshold Only

B. Hours of Work: Division I
1. To Whom Do the Hours of Work and Overtime Provisions Apply?
2. The Standard Hours of Work Under the Canada Labour Code
3.The Maximum Hours of Work Under the Canada Labour Code
4. Exceeding the Maximum Hours of Work
5. Averaging Hours of Work
6. Modifying Hours of Work
7. Overtime

C. Wages: Divisions II, III, XII, XV, and XVI
1. What Is the Minimum Wage Under the Canada Labour Code (Division II)?
Frequently Asked Questions
2. Equal Wages Requirement (Division III)
Frequently Asked Questions
3. Payment of Wages (Division XV)
4. Deductions from Wages (Division XVI)
5. Garnishment of Wages (Division XII)
6. The Wage Recovery System Under the Canada Labour Code (Division XVI) 1
Frequently Asked Questions
Summary

D. Annual Vacations: Division IV
1. Vacation Entitlements
Frequently Asked Questions
2. Scheduling the Annual Vacation
Frequently Asked Questions
3. When an Annual Vacation Interacts with a General Holiday
4. Vacation and Termination of Employment
5. Vacation and Transfer of a Work, Undertaking, or Business
Summary
 
E. General Holidays: Division V
1. Federal Statute Holidays
2. The Holiday Entitlement
Frequently Asked Questions
3. Substitution of General Holidays
Frequently Asked Questions
4. Pay for Holiday Work
Frequently Asked Questions
5. General Holiday Provisions for Managers and Professionals
6. Exceptions Regarding Entitlement
7. Sample Form: General Holiday Substitution
Summary

F. Parental, Compassionate Care, Critical Illness, and Death or Disappearance Leave: Division VII
1. Maternity Leave
2. Parental Leave
3. Notice for Leave
4. Pregnancy and the Inability to Perform Essential Job Functions
5. Compassionate Care Leave
6. Leave Related to Critical Illness
7. Leave Related to Death or Disappearance
8. The Employee’s Rights During Leave
9. The Employee’s Rights Following Leave
Frequently Asked Questions
Summary

G. Bereavement Leave: Division VIII
1. Unpaid Leave
2. Paid Leave
Frequently Asked Questions

H. Sick Leave and Work-related Illness and Injury Leave: Divisions XIII and XIII.1
1. Sick Leave Entitlements
Frequently Asked Questions
2. Work-Related Illness and Injury Entitlements)
3. Returning to Work After a Work-Related Illness or Injury
4. Employee Benefits During an Absence Due to Illness or Injury
5. Insurance of Long-Term Disability Plans
Frequently Asked Questions
Summary

I. Sexual Harassment: Division XV.1
1. Sexual Harassment and the Canada Labour Code
2. Responsibilities for Federal Employers
Frequently Asked Questions
J. Termination of Employment: Division IX and X
1. Individual Termination (Division X)
2. Group Termination (Division IX)

K. Severance Pay: Division XI
1. What is Severance Pay?
2. Who Qualifies for Severance Pay?
Frequently Asked Question
Summary

L. Unjust Dismissal: Division XIV
1. Unjust Dismissal
2. The Legislator’s Objective
3. The Complaint Mechanism
4. Invoking the Complaint Mechanism: The Prerequisites
5. The Complaint Process
6. The Adjudication Process
7. Remedies for Unjust Dismissal
8. Reviewing the Adjudicator’s Decision
9. Enforcing the Adjudicator’s Order
10. Complaint is not a Bar to Civil Remedy

M. Enforcing the Standards: What are the Compliance Mechanisms Under the Canada Labour Code? Division XVI
1. Introduction
2. The Main Focus: Wage Recovery
3. The Inquiry Process
4. Inspection
5. How Are Wages Recovered?
6. Non-compliance: Implications for Employers
Summary
 
TAB VI PERSONAL INFORMATION PROTECTION LAWS

Tabl VI Authors

VI-1 OVERVIEW

A. Introduction

B. Common Principles
1. What is “Personal Information”?
2. What Personal Information is Covered?
3. Whose Personal Information is it?
4. Who Must Comply?
5. What Do These Laws Require?

VI-2 THE FEDERAL LAW

A. Application
1. Organizations
2. Activities

B. Structure
1. Key Definitions
2. The Act and the CSA Model Code

C. Principles of Substance
1. Principle 2: Identifying Purposes
2. Principle 3: Consent
3. Principle 4: Limiting Collection
4. Principle 5: Limiting Use, Disclosure, and Retention
5. Principle 7: Safeguards
6. Principle 9: Individual Access
7. Refusal of Access

D. Principles of Process
1. Principle 1: Accountability
2. Principle 6: Accuracy
3. Principle 8: Openness
4. Principle 10: Challenging Compliance

E. Enforcement
1. Commissioner
2. Federal Court
 
VI-3 PROVINCIAL LAWS

A. The Quebec Law
1. Privacy Rights in the Civil Code
2. The Private Sector Act

B. The British Columbia Law
1. Scope
2. Structure
3. Definition
4. Requirements Surrounding Collection, Use, and Disclosure of Personal Information
5. Duties and Obligations in Collecting, Using and Disclosing Personal Information
6. The Employment Context
7. Other Considerations
8. Enforecement

C. The Alberta Law
1. Scope
2. Structure
3. Basic Concepts
4. Requirements
5. Enforcement

D. Other Provinces and Territories
1. Manitoba
2. Saskatchewan
3. Atlantic Provinces
4. Ontario
5. Quebec
6. Territories

E. Other Legislation
1. Credit Reporting Laws
2. Social Insurance Numbers

Samples