Week 1 - Canadian work law

What are the three regimes of work law in Canada?

1. Common law of employment (non-unionized employees)

2. Regulatory standards law (non-unionized employees)

3. Collective bargaining law (unionized employees)

All provinces follow this except Quebec

Employment law vs labour law

Employment law: common law + regulatory standards regimes (non-unionized) - in canada and the US

Labour law: collective bargaining regime (unionized)

Common law regime

A precedent-based (stare decisis) approach to case law where earlier decisions by judges dealing with similar facts or legal issues (such as employment contracts) guide future decisions.

• Although helps create legal predictability, common law rules can and do evolve as social values change

• Includes the law of contracts and the law of torts

Law of contracts

A legally binding agreement in which 2 or more parties make promises to provide benefits to eachother

• Cornerstone of common law

• Source of legal rules by which the parties are to be governed

• Defines the conditions under which an employee will provide labour to the employer in exchange for a monetary benefit (salary, wage) or other benefits (health)

• Can be written or oral

• Prior to the employment contract was master and servant law

Freedom of contract

The legal principle that both the employer and the employee are free to voluntarily enter into a contract with terms they mutually agree on.

• This includes wages, hours of work, duties, and other conditions of employment.

Benefits of freedom of contract in employment relationships

1. Fairness and efficiency for all parties: negotiating employment conditions leads to the fairest and most efficient outcome for the individuals involved, the broader economy, and society

2. Protects human dignity and equality: Freedom of contract ensures that workers are not treated like commodities (things to be bought and sold) but as autonomous individuals

3. Customizes to employment realities: Every job is unique, and allowing freedom of contract lets both parties adapt to the specific nature of that employment relationship

Breach of contract

Disputes between employers and employees in which one accuses the other of violating the contract

• May end up in a court room in front of a judge if not settled

• Judge will conduct a trial where parties will present documents and decide if there was a breach and what the guilty party should do as a remedy for the breach

Law of torts

A legal wrong that happens when one person harms another, either on purpose or by accident and the harm does not break a contract, and is not covered by a government law or statute (like employment standards laws)

• Judge-made law

• Ex: nuisance, trespassing, negligence, conspiracy, defamation, assault and battery, intentional infliction of mental suffering, negligent misrepresentation, etc

Dealing with the law of torts in court

The judge writes a decision that is distributed to the parties and then published in legal case digests and electronic case databases

• Thus, the decision then becomes part of the common law of employment contracts

• The common law of employment contracts in Canada now comprises hundreds of thousands of decided cases

Regulatory standards regime

Rules governing the work relationship created by the government and codified in legislation

• Employers enjoy far superior bargaining power than do employees, so employees need to be protected

• The supreme court of canada has recognized that employment contracts are distinguishable from typical commercial contracts by the inequality of bargaining power involved

Power imbalance in the regulatory regime

Workers technically have the legal right to accept or reject a job offer, this “freedom” is often meaningless in reality. 

• In practice, most workers need a job to survive, while employers have more options and bargaining power. 

• This creates a situation where employers can say “heres the job, take it or leave it”

• Because of this, the worker usually has little to no real influence over the job conditions (ex: pay, hours, safety)

• The system assumes a fair negotiation, but in reality, one side (the employer) usually sets the terms

• Since workers often cant negotiate, regulatory standards (like minimum wage laws, workplace safety rules, or maximum hours) are necessary to protect them.

• These laws are created to level the playing field and ensure workers have basic rights, even if they cant negotiate them directly

Freedom of contract defenders and the regulatory regime

Freedom of contract defenders say that courts and governments shouldn't interfere, except to enforce the contracts that employees voluntarily sign. They believe market freedom works best and that intervention reduces efficiency

How regulatory standards are enforced

Through a combination of:

• Government inspections

• Complaints filed by people who believe their statutory rights have been violated, hearing these complaints falls to expert administrative tribunals

• The courts play a smaller role in the regulatory standards regime than in the common law regime. Role is limited to judicial review

Collective bargaining regime

Addresses the inequality of bargaining power by conferring more power on workers to act collectively so that they can bargain a better deal for themselves.

• Traditional tort and contract law often treat actions like strikes or picketing as illegal or a breach of contract, labour laws override or modify these legal actions.

Justification of labour laws (collective bargaining laws)

1. Employment as submission and subordination: When someone accepts a job, its often not a negotiation between equals. The worker submits to the employers authority and becomes subordinate to their rules and control. While its legally framed as a “contract of employment,” that idea hides the unequal power dynamic in practice.

2. The role of labour law: the main purpose of labour law, especially collective bargaining law, is to balance the scales. It acts as a “counterveiling force”, meaning it helps counter or reduce the inequality between employers (more powerful) and employees (less powerful). Without laws protecting workers rights to organize or bargain collectively, employers can easily dominate the employment relationship

Views on the law supporting workers ability to act collectively

1. Pro-collective action

2. Anti-collective action

Pro-collective action

Believing workers need collective strength to balance employer power, and law should support unions and strikes

Anti-collective action

Believing collective action can disrupt the economy or productivity, the law should limit such actions to protect business interests

3 categories of rules in collective bargaining

1. Government-made statutory rules that regulate the formation and administration of unions, collective bargaining, and industrial conflict

2. Collectively bargained rules found in collective agreements

3. Judge-made rules based on common law torts that mostly apply to labour picketing and strikes

• Canadian labour law statutes require that all disputes between unions and employers about the interpretation and application of collective agreements be resolved by labour arbitrators rather than judges

3 levels of courts in canada

• Supreme court of canada, 

• Court of appeal

• Courts of first instance (lower courts)