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HRPA Law Prep Course

Unit 1
The Role and the Importance
of Law in Human Resources

Module 1:
Introduction

The Importance and Role of Law

• The employment relationship is central and crucial


to our daily lives, including in our legal system.

• The Supreme Court of Canada recognizes work as


fundamental in a person’s life, providing the person
with the means of financial support and a manner
in which to define their role in society.

• Case law: Reference Re Public Service Employee Relations Act


(Alta.), [1987] 1 S.C.R. 313

The Employment Relationship


• Employment is an essential component of a
person’s identity, self-worth, and emotional
well-being.

• The Supreme Court of Canada’s view on


employment helps us understand why the
actions and responsibilities of employers and
employees is of concern, especially in the
regulatory context.

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Employment Law vs. Labour Law

It is necessary to illustrate the crucial


distinction between Labour Law and
Employment Law.

• Labour Law deals with unionized employees.


• Unionized employees are governed by a collective
agreement.

Employment Law vs. Labour Law (cont’d)

Employment law deals with non-unionized


employees.
• Non-unionized employees rely on employment
contracts and statutes.
• Contracts govern employee interactions with their employer.

The Role of Employment Law

• It is important that HR professionals understand


what the law is and how it operates in Canada.

• Employment law governs the relationship between


employers and employees.

• This employer-employee relationship developed as a


result of the imbalance of power between the
employer and the employee.

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The Role of Employment Law (cont’d)

• Employment law emerged from a time


characterized by a master-servant relationship.
• Employers had all of the power.
• Employees had very little power.

• Employment law preserves and improves the


relationship between employers and employees.

The Role of Employment Law (cont’d)

• When the employment relationship ends, the


law imposes obligations on the employer,
especially where the employee is not at fault.

• These obligations are important due to the


significant role the job plays in the employee’s
life, and the impact the removal of this position
would have on their lifestyle.

The Role of Employment Law (cont’d)


• Employment law ensures that the workplace is both
safe and inclusive.

• Historically, employers had little or no obligation to


maintain a safe working environment.
• Employees that were injured, or sometimes killed, had no
recourse or remedy.

• Employment law fosters a safe workplace by


encouraging cooperation between employers and
employees.
• This is achieved by improving safety protocols, providing
the right to refuse unsafe work to workers, and creating a
compensation system to support injured workers.

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Unit 1
Module 2:
Sources of Law

Sources of Law
• Employment law comes from three sources:

1. Common Law
Judicial decisions dating back hundreds of years

2. Statutory Law
Legislation passed by the government

3. The Constitution

Common Law
• Common Law is an area of law is made up of judge-
made laws, spanning centuries.

• Some judge-made decisions are now dated, and may not


have relevance to an employment law situation today.
• We continue to use the thinking and approach employed by
those judges, as well as the type of reasoning that occurred.

• Understanding how their decisions have influenced the


employment relationship and to understand how
employment relationships have evolved gives us insight
into how we can resolve employment issues today.

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The Court System

• An independent court system strongly


supports the notion of a democratic society.
• This allows courts to provide protection to
workers in an unequal bargaining relationship with
their employer.

• Courts operate as a safety net to intervene


where necessary to protect prescribed rights.

The Court System (cont’d)


• The court system is hierarchical.
• Decisions by higher courts are binding on lower
courts.

• The highest court in Ontario is the Ontario Court


of Appeal.

• Below the Ontario Court of Appeal are Divisional


Courts, which hear some appeals from the Superior
Courts and some appeals from tribunals.

The Court System (cont’d)

• Tribunals are not courts.


• They are informal dispute resolution
mechanisms created by statutes.

• Tribunals govern many areas of


employment law.
• For example, the Workplace Safety and
Insurance Appeals Tribunal (WSIAT), is the
tribunal used by the Workplace Safety and
Insurance Board (WSIB).

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The Court System (cont’d)

• The Ontario Superior Court hears the majority of


legal decisions outside of a tribunal.

• Employment disputes that do not fall into tribunal


jurisdiction will fall within the jurisdiction of the
Superior Court.

• Disputes totaling less than $25,000 are heard in the


Small Claims Court.

The Court System (cont’d)

• Higher court decisions are binding on lower


courts.

• The decision by a court at the same level as


another court is only noted for its
persuasiveness.
• The decision is not necessarily binding on the
court currently hearing the employment law case.

The Court System (cont’d)

• Ontario Court of Appeal decisions are


binding on all courts in Ontario.

• The Supreme Court of Canada is the highest


legal authority in the country.
• Its decisions are binding on the entire country.

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The Court System (cont’d)


• Supreme Court of Canada decisions sometimes
relate to a very specific statute or a situation
specific to a particular province in Canada.
 These decisions may be limited to the way that
employment law operates in that province.

• Employment law is largely similar across Canada


 Supreme Court of Canada decisions concerning
employment law in one province are usually relevant
and binding on courts in other provinces.

The Court System (cont’d)

• There is no guaranteed right to have the


Supreme Court of Canada hear a case.
• Leave must be obtained.

• The Supreme Court of Canada only tends


to take on issues that it deems are of
significant public importance or that fall
under an area of law that requires
clarification.

The Court System (cont’d)


• How do we deal with large companies
operating in different provinces?

• ABC Company operates in Manitoba:


• Employees would be governed by employment
law in Manitoba.

• ABC Company operates in Ontario:


• Employees would be governed by employment
law in Ontario.

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The Court System (cont’d)

• Exception:
• Federally-regulated workplaces (e.g., banks
and airlines) are governed by federal
legislation applicable throughout the country.

The Court System

Source: Library of Parliament

The Executive Branch


• Consists of:
• The Crown (the Governor General at the federal level;
Lieutenant Governor of Ontario at the provincial level).
• The Prime Minister or Premier (the Head of Government) and
the Cabinet.
• The Cabinet is the key decision-making forum in the
Canadian government.
• Members are selected by the Prime Minister at the federal level,
or by the Premier at the provincial level.
• The executive branch makes and implements decisions
required to maintain the rule of law and the well-being
of Canadians.

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The Executive Branch (cont’d)


• Responsibilities of the executive branch
include:
• Administering and enforcing the laws that have
been passed by the legislature.

• Overseeing the public service and many of the


agencies, boards, and commissions that govern
the area of employment law.

The Legislative Branch


• The Legislative Branch has the ability to make,
amend, or repeal laws.

• Federal level:
• Consists of the Monarch (represented in Canada by
the Governor General); the Senate, whose members
are appointed by the Governor General on the advice
of the Prime Minister; and the House of Commons,
whose members (MPs) are elected by voters.

• Bills must pass three readings before receiving


royal assent.

The Legislative Branch (cont’d)

• The Legislature of Ontario is comprised of two


components:
• The Legislative Assembly of Ontario, or Parliament of
Ontario (similar to the House of Commons at the
federal level).
• The Lieutenant Governor of Ontario.

• There is no senate at the provincial level.

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The Judiciary

• Consists of judges and courts that interpret


the laws passed by the legislature.

• This branch also plays an important function


in interpreting the Constitution.

The Judiciary (cont’d)


• The Constitution is the underlying legal foundation
with the ability to override any statutes and any
laws passed by the executive branch or the
legislature.

• The Judicial branch has the ability to trump


decisions made by the legislature where those
decisions are found to be unconstitutional.

• Decisions made in the Judicial branch contribute to


the Common Law.

The Judiciary (cont’d)


• Judges are not elected; they are appointed to the
bench by government.
• Judicial appointments in Canada are made by the
federal or provincial government.

• Superior and federal court judges are appointed by


the federal government.
• Federally-appointed judges are eligible to serve on the
bench until age 75.

• Lower court judges are appointed by the provincial


government.
• In some provinces and territories, provincially- or
territorially-appointed judges serve until age 70.

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The Judiciary (cont’d)


• Judges typically outlast governments, and it is
difficult for judges to be removed.

• Judges are less encumbered by the politics of the


day and can rule as they see fit.

Political Changes
How do we put it all together and understand
the different employment laws?

• Decisions made by governments are


ultimately political.

• Decisions typically reflect public interests and


needs at that time.
• For example, decisions concerning whether to
increase or decrease minimum wage.

Political Changes (cont’d)

• Each newly-elected government has a


different agenda than the out-going
government.

• Employment laws in the provinces and


across Canada are continually changing and
adapting to the political realities of the
residents in the province.

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Keep in Mind

• Employment law exists at both the


provincial and the federal levels.
• For example, Ontario’s Human Rights Code, which
operates alongside the federal Canadian Human
Rights Act, is a provincial statute governing
workers at the provincial level.

• Human Rights statutes at the federal level,


however, only regulate employees in federal
industries.

Stare decisis
• This is the doctrine of precedent, where similar
cases are decided in a similar way.

• This concept helps the courts and tribunals


make determinations in employment situations
that are similar.

• This concept allows employers and HR


professionals to plan appropriately in order to
avoid legal disputes and, if necessary, resolve
them out of court.

Unit 1
Module 3:
Key Statutes and the Constitution

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Collective Bargaining Agreements

• Collective bargaining agreements are a major


source of law.

• Statutes governing collective bargaining are


exclusively limited to union law or labour law.

• The contents of collective agreements are largely


voluntary.
• Standards in the collective agreement can increase or
decrease.

Collective Bargaining Agreements

• A collective agreement regulates the terms and


conditions of employees in their workplace, their
duties, and the duties of the employer.

• The terms of the collective agreements are


agreed upon by the employer and the union.
• The Labour Relations Act sets the minimum
requirements that are required in a collective
agreement.

• Parties can customize collective agreements


specific to the workplace.

The Constitution

• The British North America Act of 1867 and the


Constitution Act, 1982 (BNA Act) are collectively the
highest law of the land and outline the
responsibilities of the federal and the provincial
governments.

• Section 91 of the BNA Act lists the federal


government’s responsibilities, including national
defence, the postal service and other things, like the
banking sector.

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The Constitution (cont’d)


• Section 92 of the BNA Act outlines the provinces’
responsibilities, including education, property, civil
rights, how companies are incorporated, the
maintenance and management of hospitals,
charities and prisons.

• The majority of workers in Canada are governed


or regulated by provincial laws. Approximately
10% of all workers in Canada are federally-
regulated employees.

The Constitution (cont’d)


• Since the Constitution does not specifically
mention whether employment law should be a
provincial or federal responsibility, over time the
courts were required to make a distinction on the
jurisdiction for particular jobs and industries.

• Toronto Electric Commissioners v. Snider


• The case that determined that employment law was a
provincial responsibility. It does not apply to federally-
regulated workplaces.

The Charter
• The Canadian Charter of Rights and Freedoms
forms the first part of the Constitution Act,
1982.
• Any law that violates the principles of the Charter is
considered invalid.

• The Charter only applies to areas of government


involvement.The Charter, technically, only
directly regulates the relationship between the
state and individuals.

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The Charter (cont’d)


• Government action must also be in compliance
with the Charter.
• New employment laws must conform with Charter
principles.

• Although provincial statutes govern the


relationship between two private individuals
(employer and employee), the relationship is still
indirectly governed by the Charter.

The Charter (cont’d)

• Section 15 of the Charter is of particular


importance to employment law because it
enumerates or lists equality rights.

• Section 15(1):
“Every individual is equal before and under the law and
has the right to the 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.”

R v. Kapp (2008)

• This case established a two-part test for


assessing whether to expand Section 15.

1. Does the law create a distinction that is based


on an enumerated or analogous ground?

2. Does that distinction create a disadvantage by


perpetuating a prejudice or stereotype?

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Statutes: ESA
• Ontario’s Employment Standards Act (ESA) outlines
the minimum terms of employment.
• It sets out the minimum standards for things like
vacation pay and overtime, or the number of hours
worked.

• Employers can provide higher standards than


those that are provided in the ESA.

• The ESA provides the absolute floor beyond


which you cannot go any lower.

Statutes: LRA
• The Labour Relations Act (LRA) deals with the
collective bargaining process and the right of
employees to unionize.

• The LRA has limited applicability to workers in


non-unionized workplaces.

• It is still important that HR professionals in


non-unionized workplaces understand statutes
like the Labour Relations Act and their place
within labour law.

Statutes: OHSA

• The Occupational Health and Safety Act (OHSA)


outlines an employer’s workplace health and
safety requirements.

• Health and safety is a joint responsibility that is


shared among parties in the workplace to help
minimize injuries.

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Statutes: WSIA
• The Workplace Safety and Insurance Act (WSIA) does not
directly compensate employees for work-related
accidents and diseases. Rather, instead of having
employees with work-related injuries sue their
employer for compensation, the Workplace Safety and
Insurance Act and its related tribunal offer a mechanism
for dealing with those types of disputes.

• WSIA and related tribunals help


• To reduce friction between employees and employers;
• To reduce the amount of conflict;
• To provide employees with easier access to compensation.

Statutes: The Code

• The Ontario Human Rights Code (The Code) aims to


prevent and remedy discrimination based on
prohibited grounds.
• It acts as an extension of Section 15 of the Charter.

• The Code governs the employer–employee


relationship and aims to ensure that discrimination
does not occur in the workplace.

Statutes: PEA

• The Pay Equity Act (PEA) requires


employers to provide equal pay for equal
work.

• The PEA tries to remedy inequity and


move our society closer to a point where
both men and women are paid the same
for work of equal value.

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Statutes (cont’d)

Federal statutes include:


• Canadian Human Rights Code (the federal
equivalent to Ontario’s Human Rights Code)
• Aims to eliminate discrimination in the workplace.

• Personal Information and Protection and Electronic


Documents Act (PIPEDA)
• A federal statute that may apply to situations involving
provincially-regulated employees.

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