Case Study of Canadian Employment Law
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Case Study of Canadian Employment Law
Canada’s employment law has developed from a system almost entirely based on the
labour market forces. The system was also discriminative and based on the imperialism of
employers in structuring of employment contracts. The situation and structure of employment
has changed over time. The sources of employment law in Canada are; statute law, Canadian
Charter of Rights and Freedoms and Common law. The choice of a particular source of law will
depend on the area of law in consideration. Initially, employment laws did not cover equal pay
for work of equal value. This system affected the remuneration of women who performed the
same work as men. The Pay Equity Act was enacted to cure the historical undervaluation of
women’s work.
Canadian law has developed over time and many statutes have been enacted to cover
various spheres of employment law. Statutes setting out the minimum standards of employment,
outlawing child abuse and labour, regulating the safety and health of the workplace and others
prohibiting discrimination have been passed. Additionally, the federal government has enacted
legislations like Canada Labour Code and Canada Human Rights Act. Employment law is
extensively governed by provincial laws. 1
Employee vis a vis independent contractor
Employment rights and privileges only accrue to those persons that are legally identified
as employees. A distinction should be made between employees and independent contractors. An
independent contractor is a self-employed worker performing a particular task or job for a
principal. An independent contractor is subject to few benefits which include tax benefits and
1 Toronto Electric Commissioners v. Snider, 1925 App. 396.
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flexibility. The legal protection provided for independent contractors is however less compared
to that given to employees. Employers have more legal obligations towards their employees
compared to independent contractors.
There are various tests that can be employed in determination of the employee status or
otherwise of an individual. The tests are; control, risk, organization or integration, durability or
exclusivity of relationship, tools and multifactorial test. Different results can be achieved when
determining the type of relationship. This is as a result of different circumstances and facts of
each case.
Employment Discrimination, workplace safety and equality laws
Discrimination in the workplace begins from the hiring process all the way to
employment termination. Section 5 of the Ontario Human Rights Code prohibits discrimination
in services, goods and facilities, accommodation, contracts, employment and membership in
vocational associations and trade unions. Despite employment being one of the areas covered
under the code, over 75 percent of human rights complaints arise from the workplace,(Pinto,
2012, p.214).
Section 5 of the code provides 16 protected grounds from discrimination. The protected
grounds are; race, ancestry, place of origin, gender identity, sexual orientation, age, record of
offences, marital status, family status, colour, citizenship, creed, sex, disability, ethnic origin and
gender expression. Section 10 gives the definitions for age, disability, family status, marital
status and record of offences. The courts have provided interpretations for the other grounds of
discrimination.
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In Gajecki v. Surrey School District (No. 36) (1989) 11 C.H.R.R. D/326 (B.C. Council of
H.R.). The plaintiff in this case sued the defendants for discrimination on place of origin and
ancestry. He was a teacher of Poland and origin and did not receive temporary assignment
because he spoke in English with an accent. The court held that accent is directly linked to place
of origin and ancestry. The defendant was held to have acted discriminatorily. Language is not
an explicitly listed protected ground but it can be implicitly be a basis of discrimination due to its
correlation with place of origin and ancestry.
Creed has been defined in Ontario Human Rights Commission’s 2015 policy on
preventing discrimination based on creed as “a belief system that substantially influences a
person’s identity, worldview and way of life.” Creed is not limited to religious affirmations and
beliefs but can extend to political views. In Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534
(CanLII), the Supreme Court dismissed the employer’s motion to strike down an employee’s
human rights application based on termination of his employment due to his political views on
the Syrian Civil War. The court’s decision opened the possibility of a wider interpretation of the
creed. The court did not come to a conclusion that the plaintiff’s views could not amount to
creed, (Gorsky, 2013, p.14).
Discrimination on basis of sex should be construed to extend to pregnancy. Protection
against discrimination of pregnant women is not absolute. In, Mack v Marivtsan (1989), 10
CHRR D/5892 (Sask Bd of Inq), the plaintiff’s discrimination claim based on pregnancy failed.
The court held that the employer was justified in denying the plaintiff the employment due to the
physical dictates and demands of the kitchen work. Whenever pregnancy is used as the main
reason for termination of an employment contract, it will be deemed to be unfair dismissal. In
Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII),
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the plaintiff was dismissed on the first day of employment as a receptionist because she was
discovered to be four months pregnant.
The Ontario Human Rights Commission passed a policy on sexualized and gender-
specific dress codes to remedy the rampant sexual discrimination. A legislation that was passed
requiring transsexual surgery before gender change for transgender individuals was held to be
unconstitutional in XY v Ontario (Government and Consumer Services). The rationale was that
such a requirement would reinforce the stereotype that transgender persons must have surgery to
live in their felt genders. An employer has the duty to provide a harassment free environment
based on sex, sexual orientation, gender identity or gender expression. The employee on the
other hand has the discretion to make known or update records to reflect their change in Gender
identity. (Edmonds and IP, 2013, P.16-17).
Mandatory retirement of employees at the age of 65 years was eliminated in Ontario. The
requirement for retirement at a particular age was deemed to be discriminatory based on equality
rights provisions in section 15 of the Canadian Charter of Rights and Freedoms. The court
reached this finding and declared section 25(2.1) of the Ontario Human Rights code
unconstitutional in Talos v. Grand Erie District School Board, 2018 HRTO 680.
Discrimination based on disability deals with various types and levels of disability.
Disability is grouped into; physical, psychiatric, substance abuse and perceived disability. The
case in point for perceived disability is Quebec (Commission des droits de la personne et des
droits de la jeunesse) v. Montréal (City) in which the plaintiff claimed under discrimination
because the defendants had conducted a pre-employment medical test. The test showed that she
had a slight curvature of the spine. The curvature could result in physical impairment in the
future. The court held that the defendant acted discriminatorily by denying the applicant the
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employment based on perceived or speculative discrimination. There is a current move for
Human Rights Code Amendment Act (genetic characteristics), 2018 which aims at inclusion of
gender characteristics as a protected ground of discrimination. An employer cannot refuse to hire
a candidate based on the heightened risk of a future disability claim. (Sherrard Kuzz LLP, 2017)
Section 24 of Ontario Human Rights Code provides for various exceptions to protection
under the protected grounds of discrimination. The exceptions are Special Service Organizations,
Bona Fide Occupational Requirements or Qualifications, Nepotism Policies and Medical or
Personal Attendants. Section 17 provides that only essential job requirements should be
considered when hiring applicants.
Advertisements should not be framed in a discriminatory manner and neither should the
interviews. At the interview stage, the employer has a greater latitude of questions to the
applicants. The interviewer is legally allowed to ask questions if related to the Bona Fide
Occupational Requirements or on any other exception to discrimination on protected grounds.
Pre-employment drug and alcohol testing is not prima facie discriminatory. This was held in
Weyerhaeuser Company Limited v Ontario (Human Rights Commission), 2007 CanLII 65623
(Ont Sup Ct J (Div Ct)).
Common law liability can accrue to employers. Various circumstances may warrant
employer or employee liability. An applicant may be liable for misrepresentation to the
employer. Misrepresentation by the employee may be deemed as a justification for dismissal of
the employment contract. Wrongful hiring is also another area of common law liability. This
refers to the negligent misrepresentation of an employer to an employee. If the prospective
employee relies on the negligent misrepresentation in the future, the employer will be held liable.
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The employer will also be deemed liable in instances of executive firm misrepresentations. This
was illustrated in The Treaty Group Inc v Drake International Inc.
The Employment Standards Act lays down the responsibilities and rights of employees
and employers in the workplace. The objective of the act is to create a safe workplace where all
occupants’ rights are respected and protected. The rights protected by this act include right to
payment of wages and statutory leave entitlements for employees. The act sets out the minimum
standards for a workplace. The employers and employees have the right to agree on whatever
terms they please based on freedom of contract. In exercise of their freedom of contract, the
terms agreed upon should not be lower than those provided in the act. Employment standards act
outlines the floor of the rights without limiting the ceiling.
The Occupational Health and Safety Act and Workplace Safety and Insurance Act
extensively provide for the safety of a workplace. The main aim of the acts is compensation for
employees who suffer injuries in the course of their employment. Compensation under these
statutes is only provided if the employees prove that they suffered the injuries in the course of
their employment.
Equality in employment is provided in Pay Equity Act, Employment Standards Act and
the Employment Equity Act. The employment standards Act provides for payment of similar
wages to men and women who perform substantially the same work. The pay equity act looks
into the historic undervaluation of women’s work. The act advocates for looking into the value of
the work done by women even if the work is not essentially similar in its literal meaning to work
performed by men. The Employment Equity Act is a federal statute and it in effect governs
employment in federal organizations.
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Termination of an employment contract. An employment contract can be terminated
by constructive dismissal which is commonly known as resignation or retirement or issue of
termination notice by employer. An employee is allowed to issue a notice of resignation to the
employer based on the employers conduct or any other viable reasons. The resignation notice
should be clear, voluntary and unambiguous. The mandatory retirement of 65 years was declared
unconstitutional and discriminatory. Termination of employment based on retirement should be
entirely voluntary. If an employer issues a notice of dismissal to an employee, it must be
accompanied by justifiable reasons. Failure to issue a termination notice in the prescribed
statutory timelines will warrant an employee’s right to claim under wrongful dismissal or unfair
dismissal.
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REFERENCES
Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII)
Edmonds, Ryan, and Jennifer Ip. An Employer’s Guide to Gender Identity and Gender
Expression in the Workplace. Montreal: Heenan Blaikie, 2013.
Gajecki v. Surrey School District (No. 36) (1989) 11 C.H.R.R. D/326 (B.C. Council of H.R.)
Gorsky, Thomas. Political Beliefs the Next Protected Ground? Canadian Employment Law
Today. January 9, 2013, p. 1. http://www.sherrardkuzz.com/pdf/
kuzz_eCELT_jan_2013_politics.pdf
Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII)
Mack v Marivtsan (1989), 10 CHRR D/5892 (Sask Bd of Inq)
Ontario Human Rights Commission. Hiring? A Human Rights Guide. Toronto: OHRC, 1999.
Ontario Human Rights Commission. Human Rights at Work 2008, 3rd ed. Toronto: Carswell,
2008.
Ontario Human Rights Commission. OHRC Policy Position on Sexualized and Gender-Specific
Dress Codes 2016. https://www.ohrc.on.ca/en/ohrc-policy-position-sexualized-and-
gender-specific-dress-codes
Ontario Human Rights Commission. Policy on Ableism and Discrimination Based on Disability.
June 27, 2016. https://www.ohrc.on.ca/en/%20policy-ableism-and-discrimination-based-
disability
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Ontario Human Rights Commission. Policy on Removing the “Canadian Experience” Barrier.
February 1, 2013. https://www.ohrc.on.ca/en/policy-removing-%E2%80%9Ccanadian-
experience%E2%80%9D-barrier
Ontario Human Rights Commission. Rights, Partners, Action! 2012–2013 Annual Report.
Toronto: Government of Ontario, 2013.
https://www.ohrc.on.ca/sites/default/files/policy%20on%20preventing%20sexual%20and
%20gender-based%20harassment_2013_accessible_1.pdf
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City)
Sherrard Kuzz LLP. Employer Receives Tongue-Lashing for Language-Based Discrimination.
Management Counsel: Employment and Labour Law Update. Volume XIII, no. 5,
October 2014.
Sherrard Kuzz LLP. Stay Out of My Genes! Bill S-201 Seeks to Prohibit Genetic Discrimination.
Management Counsel: Employment and Labour Law Update. Volume XVI, no. 1,
February 2017.
Talos v. Grand Erie District School Board, 2018 HRTO 680
The Treaty Group Inc v Drake International Inc
Toronto Electric Commissioners v. Snider, 1925 App. 396
Weyerhaeuser Company Limited v Ontario (Human Rights Commission), 2007 CanLII 65623
(Ont Sup Ct J (Div Ct))
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