Chapter 1

3 Part Test to determine when a person’s rights under the Charter have been infringed: 1.Does the law in question result in differential treatment on
the basis of a personal characteristic? 2.If so, is this personal characteristic based on one or more of the grounds listed in s. 15?3.Does the differential
treatment discriminate against the claimant in a way that reflects stereotypical assumptions or otherwise suggest that the claimant is less worthy or
recognition or value as a human being because of this personal characteristic?
Administrative tribunals have primary jurisdiction over most employment matters. Exception- wrongful dismissal is usually dealt with in court.
Test to establish employer employee relationship/independent contractor
Control test, Risk test, Organization test, Tools test and Durability and exclusivity of relationship test.
Chapter 2
a rule or qualification that has a negative effect on a protected group is discriminatory, unless an employer can demonstrate that it is a bona fide
occupational qualification (BFOQ).
BFOQ 3- Part Test (Set by SC in Meiorin case)
1. The discriminatory rules must be ad0pted for a purpose rationally connected to the performance of a job.
2. Adopted in an honest belief that it was necessary to satisfy a legitimate business purpose; and
3. Reasonably necessary to accomplish that purpose.
To establish this, the employer must show that it was IMPOSSIBLE to accommodate the individual or group without creating undue hardship for itself.
In 2008, in Hydro Quebec case, SC further clarified third part in Meiorin’s test. The employer doesn’t have to show that accommodation itself is
impossible but rather that it is impossible to accommodate the individual or group without undue hardship.
Exemptions: where discrimination allowed
1. Special Services Organizations: Under s. 24 (1)(a) the right to equal treatment is not infringed. ie. A shelter for abused women may choose to hire only
women as counsellors.
2. Bona Fide Occupational Qualification: An employer may discriminate on the basis of age, sex, record of offences, marital status etc. if these are genuine
requirements of the job. ie. A recreational club hires only women for the women’s change room.
3. Nepotism Policy: An employer who gives preference for student employment to the children of its employees is permitted.
4. Medical or Personal Attendants: This exemption covers home care.
5. Special (Affirmative Action) Programs: An employer may implement a special program to relieve or promote the status of disadvantaged groups or
persons to help them achieve equal opportunity.
Chapter 3
Misrepresentation by job candidate
Cornell v Rogers Cablesystems Inc, employee still employed at previous employment.
Attestation Clause
Misrepresentation by employer: Queen v Cognos: fact that employee signed written contract does not remove the employer’s liability.
Background Check: Negligent Hiring: Downey case: doorman beat patron. One doorman had history of violent action.
An agent can bind an organization to a contract with customers or other parties, even without the organization’s knowledge. Agents can be real estate
agents, travel agents and insurances agents.
An agent may be an independent contractor or an employee depending on the fact situation.
Chapter 4
Termination clause and duty to mitigate: Employer must expressly establish a duty to mitigate. Bowes v Goss: the Ontario Court of Appeal confirmed
that where an employment contract contains a stipulated entitlement on termination without cause and is silent as to the obligation to mitigate, the
employee will not be required to mitigate.
Under common law, a probationary period is not implied and therefore must be expressly stated in the contract.
Restrictive covenant: Mason v Chem Trend Ltd partnership: unlimited geographical scope found unreasonable.
Eagle Professional Resources v MacMullin: The employee successfully argued that they relied only on “publicly available” information taken from social
media sites and employer did not have a proprietary interest over the content.
Entire Agreement Clause Prevents Reliance on Earlier Representations: McNeely v Herbal Magic: Parties intended the contract document to be entire
agreement, not withstanding any prior oral representation.
Chapter 5
Duty to accommodate principle of accommodation involves three factors:
1. Individualization-no formula, each person is unique.
2. Dignity-accommodation based on respect, privacy, confidentiality, comfort, autonomy. i.e. A wheelchair entrance over the loading dock or garbage
room is unacceptable.
3. Inclusion-job requirements and workplaces must be designed with everyone in mind.
Undue Hardship
Under the Code ONLY 3 factors: costs, outside sources of funding and health and safety requirements are specifically recognized. S. 11(2), S. 17(2).
Fulfilling the Duty to Accommodate: WHO?
1. Employees with Disabilities-S. 17: The employer may require an employee with a disability to perform only job duties that are “essential.”
Providing alternative work
Essex Police Service Board case law suggests that where long-term employees are involved, the duty to accommodate may require the employer to
create a position.
Hamilton-Wentworth v Fair case. Employer could be found liable for wages lost during the period that the employee should have been accommodated
and for the ee’s mental suffering.
 Lane v ADGA Group Consultants Inc: Employer’s investigation of bipolar disorder was found to be insufficient to meet its duty under the code to
accommodate new employees. It did not investigate any accommodation options and therefore could not claim undue hardship. It based its response
on stereotypes as to the capacities of those with bipolar disorder.
2. Employees Who Abuse Drugs or Alcohol: employer obliged to institute Employee Assistance Program (EAP). In Chopra case, if an employee does not
benefit from rehabilitation effort, an employer that is fair and consistent in applying its own policies is not required to hold a job open indefinitely.
Marijuana for medical use: French v Selkin logging Ltd.: French had no medical authorization. Employer established zero tolerance policy as BFOR.
Even with its legalization, accommodations for marijuana use—to the point of undue hardship– is only required if it is medically authorized use or use
stemming from a substance abuse disability. Eg. Accommodation takes the form of time off for attendance at addiction treatment.
In certain circumstances such as safety-sensitive workplaces where there is a justified concern with substance abuse, random drug and alcohol testing
may be permitted
3. Employees Religious Beliefs and Practices: Quebec Sikh workers safety helmet case. Religious day off.
4. Pregnancy and Breast-Feeding Needs: Sidhu v Broadway Gallery: Hours reduced. Prima facie case of discrimination.
5. Family Status: Federal Court of Appeal, in Canada (Attorney General) v Johnstone, 4-part test that the complainant must prove to establish a prima
facie case of discrimination based on family status and the duty to accommodate childcare needs. The 4 elements are:
1. the child is under the complainant’s care and supervision.
2. the complainant’s childcare obligations reflect a legal responsibility rather than merely a personal choice (ie. Taking the child to extracurricular
activities)
3. the complainant has made reasonable efforts to meet those childcare obligations and no alternative solution is reasonably accessible.
4. the workplace in question interferes with the fulfillment of the legal obligation in a manner that is more than trivial or insubstantial.
Misetich v Value Village Stores Inc The tribunal stated, to prove discrimination the applicant must show that the workplace rule in question results in a
“real disadvantage to the parent-child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work”.
On the Job Drug and Alcohol Testing: Irving case. Employer needs to prove two things:
a. Workplace is inherently dangerous. B. There are enhanced safety risks
Stewart v Elk Valley Coal Corp provides guidance on when termination for a positive test result may not be considered discriminatory.
Stewart failed to disclose his cocaine addiction to employer.
Human rights applications
direct access model: The Commission NO longer accepts individual complaints of discrimination. All new applications are now filed directly with the
Tribunal. Limitation period: 1 year.
Tribunal sends the application to respondent within one week of processing it. Respondent has 35 days to fill form 2. Applicant is sent response and has
21 days to reply. Hearing occurs within 5 months of hearing notice. 45 days before the hearing, the parties MUST deliver all documents they intend to
rely on, a list of witnesses and a brief summary of the testimony. Case Assessment Direction (issued prior to hearing) is a decision of the Tribunal and
the parties will have to comply with it.
Chapter 6
Canadian Union of Public Employees v Lakeridge Health Corporation
Question in this case was whether the PEA requires equalization in the number of steps and amount of time it takes to reach the job rate? Answer-No.
Act does not require employer to harmonize wage grids to achieve pay equity.
There is no time limit on pay equity complaints; nor is there a limit on retroactive pay adjustments.
Employment Equity: a range of measures, including affirmative action and other programs, aimed at ensuring equality in employment for certain
disadvantaged groups.
Requires federally regulated companies with 100 employees or more to implement employment equity (also known as affirmative action) programs in
the workplace. The fed. gov’t has also introduced the Federal Contractors Program (FCP)
Under the FCP, provincially regulated companies with 100 or more employee that contract with the fed. gov’t for business worth $1million or more
must commit to implementing employment equity.
Develop equity plans for 4 designated groups. Women, Aboriginal peoples, Persons with disabilities, and Visible minorities.
Employers covered by the Act are known as legislated employment equity plan employers. (LEEP).
Chapter 7
ESA covers most employee. It doesn’t apply to managerial and supervisory ee’s and independent contractors. BUT the position MUST be truly
managerial, carrying the power to hire and make independent decisions.
Enforcement of rights is a complaint-based process. Unionized employee are covered by the ESA. However, they must usually follow the grievance
procedure in their collective agreement to pursue their rights under the ESA.
Emergencies Sec 19: natural disasters, extreme weather, unforeseeable breakdown in machinery, urgent repair work to the er’s place. It does NOT
include situations such as rush orders, or taking inventory, absenteeism, seasonal busy periods, or routine maintenance.
Vacation Time: Periods of inactive service-such as layoff, sickness, injury, pregnancy etc.-are included in calculating the 12 months employment. An er’ is
entitled to decide when vacation time will be taken. An ee’ who resigns before completing a full year is not entitled to vacation time, ONLY vacation pay.
Qualifying for paid public holiday: TEST: to be eligible the ee’ MUST NOT:
Fail, w/o reasonable cause to work their entire shift on either or their regular scheduled days of work immediately before or immediately after the
public holiday; or
Fail, w/o reasonable cause, to work their entire shift on the public holiday if they agreed to work or were required to work that day.
Calculating public holiday pay: Pay is calculated by adding all regular wages (not including OT) and vacation pay that is owing to the ee’ in the 4
workweeks ending just before the workweek with public holiday and dividing by 20.